HC Deb 07 June 1972 vol 838 cc611-68

  1. (1) The following provisions of this section shall have effect in place of the provisions of section 18 of the Criminal Justice Act 1967.
  2. (2) For the purpose of this section a 'bail question' means a question whether any per son who has attained the age of seventeen (in this section referred to as 'such person') and who is the subject of proceedings in any court having criminal jurisdiction (in this section referred to as 'the court') shall or shall not be granted bail.
  3. (3) A bail question may arise at any time between the time when such person first appears before the court and the time when he commences to serve any sentence involving the loss of his liberty, or, if he gives notice of appeal, the time when the appeal is determined or abandoned.
  4. (4) A bail question shall be deemed to arise whenever such person is remanded or committed by the court or the proceedings of the court are adjourned.
  5. (5) Whenever a bail question arises and such person is not represented by counsel or a solicitor, the court shall either grant him bail or inform him that he is entitled to apply for bail and ask him whether he wishes so to apply and the court may, if it considers it expedient so to do, make a legal aid order to enable an application for bail to be made.
  6. (6) Whenever a bail question arises there shall be a presumption in favour of the grant of bail and such presumption shall prevail unless the court is satisfied upon sufficient evidence that the grant of bail to such person would be likely to involve a substantial risk—
    1. (a) to the safety of any person (including such person); or
    2. (b) to the security of property; or
    3. (c) that, notwithstanding any conditions imposed upon the grant of bail, such person would abscond; or
    4. (d) that it would be impracticable to obtain any report which the court requires.
  7. (7) For the purposes of this section 'the grant of bail' includes the grant thereof upon terms, that is to say, upon such conditions as appear to be reasonable or upon such person's own recognisance in a sum which, regard being had to his means, appears to be reasonable, or upon the provision of sufficient and satisfactory sureties in such sums as, regard being had to their means, appear to be reasonable and 'the refusal of bail' includes the grant of bail upon terms which such person states to be unacceptable to him.
  8. (8) A court which refuses bail solely upon the ground set out in paragraph (d) of subsection (6) above shall remand such person in custody for a specific period being no longer 612 than appears to be necessary for the purpose of obtaining the report and may from time to time extend the said period by a further specific period for the same purpose.
  9. (9) Whenever a bail question arises and an application for bail is refused, the court shall, if such person is not represented by counsel or a solicitor or, if he is so represented and his counsel or solicitor so requests, give him a written notice stating which of the reasons set out in subsection (6) above is the court's reason for refusing him bail and informing him of his right to apply for bail to such court or judge as may be appropriate.
  10. (10) Where in any such case as is referred to in subsection (9) above the court is informed that such person intends to apply to another court or to a judge, as the case may be, for bail, the court may make a legal aid order to enable such application to be made and any court to which or judge to whom any application for bail is made may make a legal aid order to enable such application to be pursued.
  11. (11) The provisions of Part IV of the Criminal Justice Act 1967 shall apply to a legal aid order made for the purposes of this section, so however that any such legal aid order may be limited to the purpose for which it is made.—[Mr. S. C. Silkin.]

Brought up, and read the First time.

11.12 p.m.

Mr. S. C. Silkin (Dulwich)

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

I understand, Mr. Deputy Speaker, that it is intended, if it is convenient, to discuss at the same time new Clause 8 standing in the names of myself and my right hon. and hon. Friends:


  1. (1) Whenever any person has been held in custody for a period or for two or more periods exceeding in total three months and such person's trial has not commenced it shall be the duty of the person who is in charge of the place where such person is held in custody to make a report thereon to the Secretary of State.
  2. (2)Whenever the duty to make a report has arisen by virtue of subsection (1) above and the person in respect of whom the said duty has arisen has been held in custody for a further period or further periods exceeding in total one month and such person's trial has not commenced, then at the end of each such further period or periods of one month it shall be the duty of the person who is in charge of the place where such person is held in custody to make a report thereon to the Secretary of State.
  3. (3) Whenever the Secretary of State receives a report by virtue of this section it shall be his duty to investigate the matter and, where 613 he considers it desirable so to do, to take in the interests of justice and of its expeditious administration such steps as may be appropriate, including reporting the matter to any court or judge.

The purpose of the two new Clauses is to reform, to improve, to simplify and to clarify the law which governs the confinement in custody of those who, according to our ancient principles, are deemed to be innocent of any offence because they have not been found guilty and of those who intend to appeal against a conviction or who, though convicted, can safely beleft at liberty whilst then-future is being considered.

It should not be necessary for me to dwell upon the importance of this subject. It is not merely a question of relieving the gross overcrowding of our prisons, and in particular, our remand prisons, whose standards have recently led to protest and to direct action by those in custody. That is important enough in itself, imposing, as it does, hardship on individuals and intolerable demands upon dedicated members of the prison staff. But even more important is the disruption of family life, the effect on jobs, and the blow to the spirit of those who may be proved to have been wrongly or unnecessarily incarcerated, the many who are ultimately acquitted or with whom the courts find themselves able to deal without the need for custodial sentence. I accept that there will be a proportion of those with whom the courts will deal leniently because they have been in custody, but none the less a great many fall into the other category.

I said that it should not be necessary for me to dwell upon the importance of these matters affecting, as they do, many thousands more in every year than the few upon whom we spent nearly three hours when we were considering new Clause 2 before the Whitsun Recess. Certainly we on this side recognise that importance. I believe it is recognised by the Secretary of State and by the Minister of State.

11.15 p.m.

But I am compelled to say that the public generally must wonder how much importance we attach to a debate on this subject when we commence it as the hour approaches midnight after a long day's discussion of other important topics. Of course, every hon. Member is aware that the Government's time table is in a state of chaos and confusion. This is after all, the new style of Government which the Prime Minister promised us two years ago—Government by chopper followed by Government by exhaustion. It is intolerable that these conditions should be forced on us for a debate on a topic which raises wide concern outside this House and in which many of my hon. Friends wish to participate. We protest in the strongest terms against the indifference and the ineptitude of the so-called managers of Government business.

New Clause 6 is a detailed revision of the law with the object of strengthening the basic principles concerning remand in custody which are contained at the moment in Section 18 of the Criminal Justice Act, 1967 and with the object of clarifying the application of those principles. New Clause 8 brings together and improves upon a number of the Amendments we moved separately in Committee. It is intended to increase the power of the Secretary of State to supervise the use by the courts of remand in custody by ensuring that he is informed whenever a person has been held in custody over a period which is excessive, and which we place at three months, without reaching trial and thereafter month by month, requiring him to investigate such cases and enabling him to take action in appropriate cases. New Clause 8 provides, therefore, a highly desirable means of ensuring that the basic principles of remand in custody are safeguarded.

New Clause 6 is the main new Clause we are moving tonight and contains four major improvements on the system established by Section 18 of the 1967 Act. First, it creates an explicit presumption in favour of the grant of bail from the moment when a person first appears in court until the moment of his sentence, and even beyond that if he appeals. In so doing, it reasserts in modern times the principle which has been accepted since Magna Carta and which has more than once been reaffirmed in rather more modern times by the present Lord Chancellor.

Secondly, it requires that the courts shall not depart from that ancient principle unless they are satisfied, and satisfied not merely upon suspicion or belief, as so often happens, but upon sufficient evidence, that the case is one of those exceptions which alone justify an exercise of die discretion against the subject. Thirdly, it improves upon the requirements of subsections (7) and (8) of Section 18, those requirements which at present require an unrepresented defendant who is refused bail to be given the reasons for that refusal and to be informed of his right to apply to a High Court judge.

New Clause 6 extends that right in four different ways. First, it requires the court to inform an unrepresented defendant of his right to apply for bail. It is indeed the unrepresented defendant who is most likely to fail to apply through ignorance of his right to apply.

The point was made by the Lord Chancellor in the speech he made last September to the Magistrates' Association which was referred to in Standing Committee. He said, When a prisoner is on remand, magistrates should always make it their business to be certain that a defendant is aware of his right to ask for bail, and where bail is refused of his right to further recourse to a judge."—[Official Report, Standing Committee G, 14th March, 1972; c. 1011.]

In Committee the Minister of State made the extraordinary point in reply to this argument that it would be useless for courts to tell a defendant of his right to apply for bail if the court had already decided not to grant it. That is a remarkable view of the maxim audi alteram partem, which I hope will not be repeated tonight.

It enables a court to make a legal aid order for the specific purpose of enabling the defendant to apply for bail and it recognises that the lack of representation is, or may be, a serious handicap in the presentation of the case for bail or in the scrutiny of an objection to bail. Very often the latter is the more important matter to be attended to.

The new Clause brings the law up to date by requiring the court, if it refuses bail to an unrepresented defendant, to inform him not only of his right to apply to a High Court judge but also of his rights under the Courts Act to apply to the Crown Court. This is at present in an amended Schedule to the Bill, the Amendment having been put in at our instance in Committee. In these respects the new Clause follows closely the pro- posals made not so long ago by a group of Conservative lawyers.

It makes specific provision for the grant of legal aid in all cases where that right is exercisable, including those applications to a High Court judge which are dealt with at present by the Official Solicitor.

The most important of the major improvements introduced by the new Clause is a change in the method by which courts will be able to justify the departure from the general Magna Carta principle. Section 18 lists a number of pegs on which a court can hang a decision to refuse bail. There are eight of them in subsection (5) and one in subsection (6). The drawback of a peg is that it is easy to hang a hat on it. The new Clause removes the pegs and establishes broad principles or criteria within which the courts may act. They are the basic justifications for a refusal of bail; the present pegs are merely examples of them.

The four criteria which are set by the new Clause are a substantial risk to the safety of the person; to the security of property; of the likelihood of the defendant absconding; and of failure to obtain a necessary report. I would accept one further broad justification which is not included but which could be inserted in the House of Lords, and that is a substantial risk that witnesses may be tampered with.

It is frequently important, when considering the very important work of revising legislation, to look back on the debates which took place when the existing legislation was passed into law. In this case that is some five years or more ago. I have studied the debates in Standing Committee on the Clause which became Section 18 of the 1967 Act. I see from those debates that if I was wrong in the view I have just expressed, that we should be looking at the broad principles rather than at the pegs created by the 1967 Act, I was equally wrong then, because I then argued for the same general criteria as those for which I argued tonight.

What is perhaps more important than my consistency in error is to see who was wrong with me on that occasion, and they are a distinguished group.

The present Lord Chancellor said: In truth and in fact, I am confident that the only reasons for which magistrates ought ever, under the existing law or under any proposed law, to refuse to give bail are primarily that the man proposes to jump bail; secondly, that the man proposes to interfere with witnesses in one way or the other; and thirdly, that the man will commit an offence while on bail." Later he said: …my fear—and I understood it to be echoed by the hon. and learned Member for Dulwich—is that this Clause, —he was speaking of the Clause which became Section 18 of the Act— looked at plainly as a piece of English, which is how the magistrates will have to look at it, will divert the magistrates' attention from the right points and attract their attention to the wrong points. It seemed to me that the hon. and learned Member for Dulwich had the right answer. They ought to be told in the Statute what ought to govern their decision. I have stated that now three times in order to save time, and I shall not state it again."—[Official Report, Standing Committee A, 15th February, 1967; c. 438 and 448.]

The Lord Chancellor repeated the same view in the speech to which I have referred, which he made last September to the Magistrates' Association. My right hon. Friend the Member for Birkesnhead (Mr. Dell), in an eloquent and informed speech in Committee, referred to the Lord Chancellor as saying: Secondly, prior to conviction, prima facie, a defendant is entitled to bail, especially before trial, unless there is some reason to believe that he may run away, get at the witnesses or commit further offences.… 'There are, however, four main considerations for refusing bail. They are:

  1. (i) The likelihood or otherwise of the defendant disappearing before trial or before the final disposal of the case on sentence or appeal.
  2. (ii) The chances of his committing further offences when out on bail.
  3. (iii) The chances of his interfering with the course of justice when out on bail. (iv) The necessity to procure medical or social reports pending a final disposal of the case.' "—[Official Report, Standing Committee G, 14th March, 1972; c. 994.]

It is those four principles, or rather three plus one, which I have already said I should be willing to see added to the new Clause, which this Clause contains in so many words.

That was the Lord Chancellor. The former Attorney-General, the late Sir John Hobson, said, By and large, I find myself in substantial agreement with the hon. and learned Member for Dulwich (Mr. S. C. Silkin). What he suggests is a sensible way of dealing with it. On consideration, it might be possible to try to devise a different framework, but on the whole his framework seems sensible."—[Official Report, Standing Committee A 15th February, 1967; c. 444.] My right hon. and learned Friend the Member for Liverpool, Edge Hill (Sir Arthur Irvine), the former Solicitor-General, and the hon. and learned Member for Solihull (Mr. Grieve) spoke in a similar sense.

But if we were all wrong in moderation, there was one Member of the Committee who spoke in a most immoderate way about the Clause, saying, As I understand it, the purpose of this Clause is to extend the provisions of bail, or to try to ensure that where possible people are released on bail rather than being retained in custody. Having quoted a considerable number of figures about people kept in custody when in many cases they need not be, he went on: If that is so then in my submission this Clause, which attempts to deal with the problem, could be described at the most as beginning to nibble at the surface of the problem."—[Official Report, Standing Committee A, 15th February, 1967; c. 423.]

That was the present Minister of State. New Clause 6 does not nibble at the problem. It meets it and it deals with it. The Minister of State told us in Committee that the passage into law of Section 18 has at least improved the situation, and I accept that. The figures bear it out. If, as some suggest, improvement is due, in part at any rate, to the publicity created by the discussion on Section 18, then we are performing a valuable function by discussing this new Clause, even at this late hour.

I believe that a clearer and strengthened Section 18 will still further improve a situation which can and must be improved. I hope that the militancy which the hon. and learned Member showed on that occasion has not slipped from his shoulders since he became Minister of State. I must warn him and the Home Secretary that we shall not be content on this occasion with soothing but negative words, or with emollient but idle phrases. We expect these Clauses to be accepted in form or at least in principle. We do not regard it as either necessary or desirable to await the report of some working party. Parliament is the working party of the nation, and if the Government fail to respond to our proposals, then we shall certainly be forced to record our disappointment in the Lobby.

11.30 p.m.

Mr. Daniel Awdry (Chippenham)

I oppose this Clause although I have some sympathy with the arguments advanced by the hon. and learned Member for Dulwich (Mr. S. C. Silkin). Everyone must regard this as a timely debate in view of the background to it, which is the report, published today, of the Commissioner of Police for the Metropolis for the year 1971. All who have studied the report must be mindful of its contents. We read that in the year under review crime increased by 6 per cent. and crimes of violence by 15 per cent. The total number of arrests for indictable offences was 86,287, a rise of 6.6 per cent. over 1970.

The significant factor that is the background to the debate is that during the year under review over 2,000 persons were arrested for indictable offences committed while they were on bail. As approximately only one in three is arrested, this means that almost certainly 6,000 offences were committed by persons on bail in 1971. That is a staggering figure. It does not seem a very clever or appropriate time to make the major changes suggested here.

I was not on the Standing Committee, but that is no reason why I should not speak on the subject. I have a limited experience of criminal courts. I do not think that magistrates refuse bail, when they do refuse it, because they want to be unreasonable or harsh. They do so because in practically every case they feel that if bail is granted further offences are likely to be committed by those released on bail. Those views are reinforced by what we read today in the report of the Commissioner of Police.

The country faces a tremendous rise in crime, and this is not a good or sensible time to change the arrangements for bail in the way suggested. Such a change will be doubly resented by the police, and we need their confidence. Certainly it will be misunderstood by the general public, and it will be welcomed by the criminal classes. For those reasons, I hope that the new Clause will not be accepted.

Mr. Paul B. Rose (Manchester, Blackley)

Immediately before the Whitsun Recess, I was able to raise with the Minister of State in passing the question of bail during a wider debate on the subject of our civil liberties. The only reply that I had was the usual flow of smooth words, without anything substantial to answer the problem of bail applications.

One of the by-products of the failure of our courts to grant bail when it ought to be granted is the unrest in our prisons and the militant note which has been struck inside them recently, not least in Brixton and in Strange ways, Manchester. With the overcrowding of prisons and the inadequate facilities, the militancy which has been manifested outside in other spheres now apparently is infiltrating into these non-violent protests in our gaols. The reason is that a period of three months awaiting trial after committal is wrong.

Those of us who have the unfortunate experience of visiting these people know that to go to Brixton to interview a person who has been kept inside a prison cell for a period of three months is by no means unusual, and the period may be as long as 10 months. Recently cases have been reported. There was one only the other day of a man who waited six months for trial, and the only reason why he was not given bail was that his surety found the procedure so bureaucratic that she eventually gave up trying. The result was that he languished for six months and was eventually acquitted of the charge.

Many of us have had personal experiences in this connection, not least with regard to those awaiting appeal. One example was of a man with five children on a first offence. He was sentenced to nine months imprisonment. His appeal came up after five months. He was sent away a free man, the conviction having been quashed. But by that time he had served five of what in effect would have been a six-month period in prison. What became of his wife and family in that time?

In replies that the Minister has given me, he has indicated that last year 32,000 people were remanded in custody awaiting trial or reports and not given custodial sentences subsequently. Of those 32,000, 2,500 or so were acquitted. While 2,000 offenders committed offences while on bail, 2,500 persons who were not offenders were kept inside our prisons and were subsequently released because they were found to be not guilty, and 30,000 people were not given custodial sentences after a period in prison.

We all know the practice of detaining people for reports, sometimes quite legitimately but often not necessarily. Again, we have all come across experiences such as the recent case of a girl of 17 who was remanded in custody at Holloway for medical and social inquiry reports. I asked her how long those reports had taken. I was told 20 minutes in one case and 30 minutes in the other. She was kept in prison for two weeks and subsequently placed on probation. That is not up typical of the experiences of many of us in dealing with persons who come before our courts.

The main problem is not with the higher courts but with magistrates' courts with regard to remands for inquiries and remands pending trial and for reports. Perhaps it is a mercy in some cases that people are committed in custody to the higher courts. We know that those were not committed in custody instead of waiting their three months. They may well have to wait over a year if they happen to be in the area of Inner London or Middlesex.

There is an important question that touches upon our freedom. It is all too often alleged by those who have passed through the hands of the police—often falsely but far too often for us to be comfortable about it—that the granting of bail is a bargaining point for a plea of guilty. It happens, or is alleged to happen, far too frequently to be ignored.

Although it has been said that magistrates do not wish to be harsh, the fact is that lay magistrates are timed and far too readily accede to police objections. The police should be in a position to present evidence as set out in new Clause 6, that there may be intimidation, the likelihood of another offence being committed or that the person is unlikely to turn up for trial. However, the onus must be on those opposing the liberty of the subject.

Surely legal representation is as vital in this sphere as it is in any other. Only today I have had the experience of seeing a completely inarticulate man faced with the position of having been arrested yesterday and unable in any sense to ask for bail in the way he would have been able to do had he been represented. The reasons for the denial of bail must be given in full, just as one would give a judgment in a civil case. The problem is that when bail is refused it is always said that one can go to a judge in chambers. But how many of those people facing this situation are informed of that? If they are informed, how many have the means when they are denied legal aid, to go to a judge in chambers when manifestly bail should have been allowed and the magistrates were too timid to allow it?

These are all problems which have been dealt with adequately in the new Clause, which I warmly support. They provide guide lines and principles that can be adhered to by the courts. There are firm principles which are substituting the whims or prejudices of individual members of the bench.

It is right that Parliament should lay down these firm guide lines on a subject which is of growing importance to the individual citizen and his liberty.

Mr. W. F. Deedes (Ashford)

In a way, a number of us would not be unwilling to look afresh at some of the principles governing the granting of bail. I accept a certain amount of what the hon. and learned Member for Dulwich (Mr. S. C. Silkin) said in moving his new Clause. It is designed to reform, improve and simplify the law in this direction. By comparison with the United States of America, which has given an immense amount of thought and inquiry to this subject, we have probably tended to under rate or under-inquire into the subject.

There is a good deal of evidence that the practice of the courts is in some respects unsatisfactory, though not from one standpoint only. However, we are entitled to question whether the new Clause is the right way to tackle this problem. To my mind the new Clause is only too typical of the way in which a number of matters have been dealt with in my memory in Criminal Justice Bills. This might be described as creating reform by hunch. Only in the light of trial and error—more often, I am afraid, error than trial—do we discover that we have it wrong. Therefore, I question whether—I accept the sincerity with which the hon. and learned Gentleman moved this new Clause—this is the right way to go about it.

Another question which has arisen in the minds of some of my hon. Friends is whether bail is too liberal or not liberal enough. The point made by my hon. Friend the Member for Chippenham (Mr. Awdry) in the light of the Commissioner's report was fair and valid. I have no doubt, in the light of what I am told by chief constables elsewhere, that his recommendation would be rejected by those with experience outside the Metropolitan area.

What gives cause for disquiet is not so much the administration of justice in this matter as the administrative consequences. We are up against the result of a criminal explosion and the heavy administrative demands which this makes.

11.45 p.m.

The scandal today lies not with the injustice whether bail is or is not granted, but with the wholly inadequate administrative provision for those who are on remand. No one who has recent experience of looking over Brixton Prison, which is one of the principal centres which receives people on remand, could be satisfied with the conditions there. That point must be made by those who en passant oppose the new Clause. Brixton Prison cannot be defended from any standpoint as a sound administrative penal centre. It suffers not from neglect but from gross overloading.

I should like to take the matter one stage further. This is a minor point, but I know that one of my hon. Friends is deeply concerned about it. We know that in the Midlands no centre exists for women on remand. They have to travel about 90 miles to trial and back in intolerable circumstances because the administrative arrangements are inadequate.

All this hammers home the lesson which so many Criminal Justice Bills ought to have taught us by now—that, however good our intentions may be, in the end our administrative failings undermine the best of intentions. This has happened again and again with detention centres, borstal institutions and, I suspect, bail.

I hope that the Minister of State will resist the new Clause because it is probably the wrong approach to a big subject. However, I hope that he will agree that there is a need to undertake an urgent review of the administration which governs prisoners on remand, because no one can be satisfied with the arrangements which now obtain. I believe that is the right approach. I do not accept that it is the administration of justice rather than wholly inadequate administration which is wrong.

Mr. Edmund Dell (Birkenhead)

The right hon. Member for Ashford (Mr. Deedes) complained that the new Clause was based on hunch. He knows, having been a member of the Committee, that again and again in Committee we tried to find out what the Home Office knew about this subject but were given a complete blank as an answer. For example, the Home Office does not know how many people on bail abscond.

The right hon. Gentleman then said that the problem is administrative inadequacy. I cannot believe that he is saying that, because of administrative inadequacies in the system, therefore people who could safely be allowed bail should be remanded in custody. This surely would be an intolerable situation.

Incidentally, the fact that this happens makes the administrative problems in our prisons that much more serious. Nobody causes administrative problems in our local prisons more than the man who is remanded in custody, because of the necessity to take him to the court. Has the right hon. Gentleman seen the studies which have been made of the administrative problems which arise because people who could perfectly well be remanded on bail are remanded in custody?

My hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin)—I congratulate him on a brilliant piece of drafting—has deployed the essential arguments in favour of the reform of the law in this respect. I add two arguments to those that he deployed. First, the law rightly requires that the courts should not imprison first offenders wherever it is possible to avoid it. There is no such presumption in respect of remanding first offenders in custody. It is just as right that there should be discouragement in that respect as in respect of sentences of imprisonment.

Second, as I showed in Committee, the tendency of the courts is to remand in custody young offenders to an extent far greater than the contribution of young offenders to crime. This, again, is unnecessary and unjustifiable.

I want mainly to deal not with the argument for the Clause, because my hon. and learned Friend and my hon. Friend the Member for Manchester, Blackley (Mr. Rose) have covered that fully, but with the arguments which have been deployed against a reform of the law of this type. One of the arguments has been that magistrates' courts do not remand people in custody out of harshness or from lack of interest. The Lord Chancellor has made it clear that in his view people are being remanded in custody unnecessarily, that he suspects that remands in custody are being used in certain cases as a punishment, and that, no matter that some hon. Members may regard that as desirable, it is contrary to the law. That is what is happening. The issue is whether people should be remanded in custody when there is no reason of the type specified in the Clause why they should not be remanded on bail.

The second argument against is one which the Minister of State has used on a number of occasions, namely, that there has been progress in this respect: a smaller proportion of people are now being remanded in custody and more are being remanded on bail. I express my gratitude to the Minister of State for sending me recently some figures he has produced which show the picture in the country as a whole over the period 1969–70. There is some comfort in these figures, but I do not find as much comfort in them as the Minister of State finds, because the figures show two things. They show, first, that in the Metropolitan Police District, where the majority of people are being remanded, the tendency is the other way. Whereas in the country as a whole most people are dealt with immediately and are not remanded, in the Metropolitan Police District most people are remanded, and more people were being remanded in custody in 1970 than in 1969.

The main argument throughout these debates has been that the right way to deal with the problem is by administrative methods, not through the law. I take one specific example of the use of administrative methods, the case of medical remands. The hon. Member for Chippenham (Mr. Awdry), who so approves of remands in custody, probably does not approve of people being sent to prison simply for the purpose of getting a medical report. The Home Office set up an out-patient clinic at Holloway so that people could be remanded on bail and yet have a medical report. The Minister of State's experience of the working of that scheme was expressed in Committee, when he pointed out that the use of it was disappointing. One reason he gave was that the original catchment area was small. His statement that its use was disappointing implies that he feels that, despite the fact that he set up this administrative system for reducing remands in custody, magistrates' courts covered by the scheme were continuing to remand in custody when they could perfectly well in the new circumstances have remanded on bail.

The second part of his argument from which he takes comfort is that the failure was due to the fact that the original catchment area was so small—or that it was in part because of that. I do not know whether the hon. and learned Gentleman has seen the evidence which the Howard League presented to the Home Office working party on bail, which shows in paragraph 39 that the catchmentarea was not so small and that the two courts concerned in 1967 sent 24 per cent. of Holloway's medical remand prisoners. It was not so small, but the use was negligible.

If the Minister is to rely at all on administrative methods he must put some effort behind them. He must not just set them up. He must make sure the courts use them. The fact is that the courts did not use this experimental scheme. Unless he puts some effort behind it, they will not use the extended scheme which he has set up.

In Committee we had a discussion on Section 18. One of the effects of the new Clause is to extend the coverage of the presumption in favour of bail which Section 18 of the 1967 Act was intended to create. The hon. and learned Gentleman and I had a discussion in Committee on whether Section 18 covered Section 14(3) of the Magistrates' Courts Act, 1952. He said that it did not. I said that it did. He repeated that in a letter to my right hon. and learned Friend and in a letter I received today he courteously withdraws his position. I am grateful to him for his courteous withdrawal.

His withdrawal has certain implications which perhaps he has not appreciated. What is the view of the magistrates' courts on whether Section 18 of the 1967 Act covers Section 14(3) of the 1952 Act? If the Home Office can be stubbornly mistaken in this point over a period of months, it is possible that the magistrates' courts are not clear on it. What is the view of the magistrates' courts on this subject? Does the Minister of State know? Will he inquire?

There are further implications of his withdrawal. In 1969, the last year for which figures were available, there were 11,000 remands in custody for reports under Section 14(3) of the Magistrates' Courts Act. It is interesting that in Committee, when the hon. and learned Gentleman was maintaining his point of view on this, he said that I could not be right because if I were right all these remands could not possibly have taken place. He said If the right hon. Gentleman is right that Section 14 remands are covered by Section 18(1) and (2), presumably they must also be covered by Section 18(6) if magistrates remand in custody at all, because if they are covcrel only by Section18(1) and (2) presumably on summary trial there would be no power to remand in custody."—[OFFICIAL REPORT, Standing Committee G, 14th March, 1972; c. 1005.] But now the Minister of State is facing the fact that he was wrong and that I am right. He is facing the fact that there is, subject to Section 18(5), no power to remand in custody and yet all these remands in custody took place. Do the magistrates' courts understand the law as now, more correctly, interpreted by the Minister of State?

12 midnight

Section 18(5) provides the exemptions and ways out. Is the Minister saying that these 11,000 remands in custody in 1969 were covered by that Section? Is he going to inquire into that? It did not seem feasible to the hon. and learned Gentleman that it could be the case, but is he saying now that it is? Now he has to say that if he is to maintain the position that the law is in a satisfactory state. If he cannot say that—and I believe that he cannot—then he has to accept as an implication of his withdrawal that the law needs, first, strengthening, and, secondly, clarifying.

What about the refusal of written reasons for the refusal of bail? Does the Minister know whether these 11,000 remands under Section 14(3) were given written reasons? I am sure that he does not, because so often the Home Office has to work on hunch. The Minister does not know, and such evidence as I have is that they are not given written reasons, as they are required to be given under Section 18, if, as the Minister now admits, Section 14(3) is covered by Section 18.

The hon. and learned Gentleman may take comfort from the fact that courts are required to give written reasons only if bail is refused, and the view is that bail is refused only if it is asked for. We have here the position that an offender to be remanded in custody under Section 14(3) has to know his law so well that he asks for a remand on bail, when the Home Office itself did not know until recently that Section 18 covered Section 14(3).

The Minister shakes his head, but the fact of the matter is that if the Home Office cannot be certain on a point of law of this importance, it cannot expect the offender in a court to know that in order to secure his legal rights to a written statement of the reasons for refusal of bail he has to ask for bail. That is the argument on which the Minister depended in Committee.

The Minister's withdrawal has wider implications than perhaps he has noticed. His withdrawal means that the law clearly requires to be reformed. I cannot accept that we can wait for the report of the Working Party on Bail. It seems to me that we cannot afford to lose this legislative opportunity to reform the law. It is important that the law should be strengthened and clarified, and the administrative changes which the Minister wishes to make, though they are welcome, are likely to have a small impact unless he puts a great deal more effort behind them than there has been evidence of so far.

The Minister agreed in Committee to review the form covering the application to a judge in chambers. He agreed also to discuss with the Law Society whether solicitors were giving help in the filling up of forms. I hope that he will tell us that he has done those two things. The main point that emerges from the Minister's withdrawal and from the other arguments that we have been deploying this evening is that the law must be reformed.

Mr. F. P. Crowder (Ruislip-Northwood)

I shall detain the House for only a few minutes. I welcome the principles contained in the new Clause and I congratulate the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) on the drafting of it, but he must remember that if it becomes part of the Bill it will go to lay magistrates in various parts of the country who have been carrying out their duties in respect of granting bail in an extremely efficient manner.

What is a farmer in Devon, sitting as a magistrate, to think and say when he reads subsection (7) which says: For the purposes of this section' the grant of bail' includes the grant thereof upon terms, that is to say, upon such conditions as appear to be reasonable or upon such person's own recognisance in a sum which, regard being had to his means, appears to be reasonable, or upon the provision of sufficient and satisfactory sureties in such sums as, regard being had to their means, appear to be reasonable and 'the refusal of bail' includes the grant of bail upon terms which such person states to be unacceptable to him.

Sir Elwyn Jones (West Ham, South)

Perhaps the farmer would read it rather more intelligently than that.

Mr. Crowder

I am delighted that the right hon. and learned Member for West Ham, South (Sir Elwyn Jones) should intervene, because anybody less intelligent than he at reading anything I have never found in this House. After all, a Devonshire farmer knows what bail is all about. He does not require a lot of verbiage such as this subsection to guide him about what he has to do.

In my respectful submission, the three main features with which a magistrate is concerned when he has to deal with bail are: first, is the man likely to stand his trial; secondly, is he likely to commit any further offence between committal and trial; thirdly, is he likely meanwhile to interfere with any witnesses who may be called against him? When a magistrate has to decide whether he should grant bail the police are called. Such is the normal custom. They are asked whether they oppose bail—and those are normally the three matters which are put to them.

Of course, if a police officer goes into the box and says, "I have reason to believe that this man will interfere with witnesses", there can be very little cross-examination, there can be very little argument about the matter, and if there is a real fear of that, then the court obviously will be very loath to grant bail in the face of an experienced police officer in charge of the case saying that in his view the man is likely to interfere with witnesses. In those circumstances it would quite obviously be irresponsible for the court to grant bail. Equally, if a police officer goes into the box and says that, having regard to the man's previous convictions, having regard to his record, the man is very likely to commit a further offence pending trial, once again the court is put in a very difficult position.

I have always thought it a great pity, in cases where bail could be given, that the bail should not be paid in money there and then on the spot. It is all very well to say, "Bail is granted in two sureties, £150 in each surety". I should like to see the colour of the money in court before a person is granted bail, because if it is a question, as it nearly always is, whether the man stands his trial and whether he will turn up in six or seven months' time, before what used to be quarter sessions and now probably is the Crown Court of Assize, it is a great thing that the money is there; there is no argument about estreating bail when a man fails to appear on behalf of it.

Mr. Clinton Davis (Hackney, Central)

Is the hon. and learned Member arguing the case now for bail bond shops as exist in New York and other cities of the United States, and which are a front for racketeering? Or is he suggesting that sureties should be obliged to sell out their assets when the assets are not liquid? This would be the only method of depositing the money with the court. What is he suggesting?

Mr. Crowder

I am much obliged for that intervention. It is most helpful. I am not saying that it should necessarily be obligatory, but the hon. Gentleman knows as well as I do that there are often cases where bail is deserving, where large sums are available by way of surety, and where the court is not sure of it. I do not see why the court, when it thinks fit in its own judgment, should not be empowered on occasion to say, in its own discretion, "I do not see why this man should not have bail. He says that he can produce two sureties in the sum of £500 or £1,000 each. But this court would like to see the colour of their money". Although the court is not altogether happy about granting bail, it may say that it will grant bail provided the money is deposited with the court and that the man should surrender his passport and himself to the police station twice a day to indicate that he is working in a reasonable job and has not left the country. We all know the delays which take place in this country before cases come for trial.

The reason for my putting this argument is that I do not see why the discretion should be taken away from the courts. The discretion as to bail should not be imposed on the courts by statute. But I welcome the Clause and the very good guidance it gives.

Mr. Emlyn Hooson (Montgomery)

The hon. and learned Member for Ruislip—Northwood (Mr. Crowder) congratulated the hon. and learned Member for Dulwich (Mr. S. C. Silkin) on the principles embodied in the new Clause. I do not see why he should have done so because there is nothing new in the principles. The principles are accepted on both sides. All that is new is that they are embodied in a proposed piece of legislation and setout in very clear terms. No farmer in Devon could have read the Clause as stupidly as did the hon. and learned Gentleman. Though apparently the hon. and learned Gentleman thinks that farmers in Devon are likely to understand perfectly the principles which govern granting bail, apparently they are not able to read them sensibly.

The sole question for decision by this House is whether it is beneficial for the country that these principles, which are generally agreed and which have been set out on a number of occasions by the present Lord Chancellor, should be embodied in legislation or whether they should be left merely to administrative action, as in the past. That depends on whether we are satisfied with the general way in which remand in custody is made and the way in which bail is granted.

I did not follow the argument of the hon. Member for Chippenham (Mr. Awdry). He was right to refer to the report which came out today. Naturally hon. Members are always concerned about the increase in the incidence of crime. The hon. Member inferred from the report, in a way which I did not follow but which I accept for the purpose of the argument that 6,000 crimes in the metropolitan area were committed while people were on bail. If there is any substantial risk of damage to property or to any person, principles for dealing with it are embodied in this Bill. Those are the principles acted upon now by magistrates when they decide whether to grant bail. What difference can the embodiment of these principles in legislation make to the general practice of the magistrates?

What is in question is the way in which magistrates in certain parts of the country interpret the rules. There is uneven administration. This is what concerns most people. They know of cases in which bail clearly would be granted under one jurisdiction but it is not granted. If the case were in a different county with a different bench, bail would be granted and it is not. The position is the same with remands. Some benches are notoriously lenient about remands in custody. People who should be remanded in custody are not. The position is unsatisfactory.

I wish that I could believe that the matter could be left to be solved by administrative action, but I regret to say that my experience is that it cannot. We should not lose this opportunity of embodying the principles to which I have referred in this Bill. There is nothing new in the requirements about giving reasons in writing to the accused person.

12.15 a.m.

If the principles are clearly embodied in a piece of legislation of this kind, then everyone is informed that there is a presumption that bail should be granted, unless certain conditions are satisfied. This knowledge could in time operate to the disadvantage of the accused. In other words, if the jury knew that the man had not been on bail, that could operate to his disadvantage, though it probably does to a degree now. However, that is not a very substantial point and I think that the advantages of the Clause cancel out this consideration.

Second, our law is in danger of becoming more and more involved rather along the American pattern. The more we try to embody principles in legislation to tell people their rights, the more involved the law tends to become. Although this is the greatest argument against the Clause, I have not been persuaded, although I am aware of the danger not only in regard to this legislation but in regard to the legal profession generally, that we get more and more involved in preliminary arguments instead of getting to the substance of the matter; is this man guilty or not guilty? We spend perhaps too much judicial—counsel and solicitors'—time dealing with these preliminary issues.

I have come to the conclusion that the present position relating to remand—the divergence of practice in the granting of bail—is such that it would be better to adopt this Clause and embody these principles in legislation. However, I agree with the hon. and learned Member for Dulwich that it is essential in another place that the fifth principle, that of a substantial risk of interference with the course of justice—interference with the witness—should be included.

I have decided, after considerable thought, having had doubts about the second point to which I referred, that it would be advantageous to have these principles embodied in legislation.

Mr. Edward Gardner (South Fylde)

The hon. and learned Member for Dulwich (Mr. S. C. Silkin) was good enough to refer to a recent report of the Society of Conservative Lawyers. He will recall that that report said that remand in custody was a very disquieting and difficult problem, and I am sure that all hon. Members will agree with that.

I am bound to say that I do not think that the proposals of the hon. and learned Gentleman would either remove the disquiet or solve this difficulty. The thrust of the argument we heard from the hon. and learned Gentleman was not all in one direction. There are two clear and persuasive sides to it. The first side, which moves me and will move all hon. Members, is the fact that the latest figures, for 1969, showed that there were 44,000 people in our prisons who were not there for anything to do with punishment and that after trial about 21,000 of them were released, either because they were acquitted or because the court decided that a sentence other than imprisonment could be imposed against them.

On the other hand, we have had the figures contained in the Police Commissioner's report rehearsed by my hon. Friend the Member for Chippenham (Mr. Awdry). These showed in effect that last year 2,049 people committed crimes after being released on bail. The significant figure, which my hon. Friend the Member for Chippenham did not mention, was that of those 2,049 people who committed crimes after they had been freed on bail, 700 were released in the face of objection by the police.

It is true that Section 18 of the Criminal Justice Act, 1967, sets out clearly the principles upon which a court can refuse to grant bail. My right hon. Friend the Member for Ashford (Mr. Deedes) mentioned that the Americans have given a great deal more research and have very much more to their credit on the subject of bail than we have. It is worth bearing in mind that Section 18 of the 1967 Act was introduced into that Bill, as it then was, after a report of a Committee of Justice, which looked at the way in which the American system was working and concluded that one of the defects in the law at that time was any clarification of the principles upon which a court could properly refuse to grant bail. Section 18 of the 1967 Act did much to remedy that lacuna. Now what remains is any clear guide in our legislation, as we have it at present, of the principles upon which a court should grant bail. It would be a credit to the Government if some consideration could be applied to this particular problem.

One of my criticisms of the new Clause is that it does nothing to add any kind of principle or to clarify any kind of principle which would enable a court to be guided into a decision on whether to grant or to refuse bail. Of that I am absolutely clear.

I conclude with a point which is paramount in a consideration of any kind of legislation upon which we have to embark to improve our system of granting or refusing bail. We give, rightly, an immense amount of care to a plea of innocence during trial and do all that we can by our procedures to make sure that a person is not improperly deprived of his liberty. If they do not know this already, the courts ought to be educated about the equal importance of paying attention to the need of making certain, and doing everything to make certain, that a person is not improperly deprived of his liberty before trial.

It is with some regret that I say that the new Clause would not achieve that purpose.

Mr. R. C. Mitchell (Southampton, Itchen)

I agree with the hon. and learned Member for South Fylde (Mr. Gardner) that this issue is very much one of balance. It is not a straight-cut issue on one side or the other. The hon. Member for Chippenham (Mr. Awdry) rightly pointed out that a number of crimes were committed by people who were on bail. On the other hand, my hon. Friend the Member for Manchester, Blackley (Mr. Rose) made the very telling point that a large number of people remanded in custody were eventually acquitted after spending a long time in prison for no reason. Similarly, a much larger number, having been remanded in custody, were eventually given a non-custodial sentence.

The important issue here is that people are in custody on remand for rather a long time at present. I do not think we should be worried so much if that were not so—if, for example, there were only a week or a fortnight between committal and trial. Perhaps I can put forward what may be regarded as a slightly facetious proposition—that the courts should take an example from the National Industrial Relations Court and sit at weekends in order to clear up the backlog of cases. But I do not think that suggestion will be greeted with enthusiam by the lawyers on either side of the House.

Apart from the worry of keeping people in custody on remand for such long periods, there is also a factor of the overcrowding of remand prisons and the bad conditions which exist because of this. The whole thing adds up to the question of balance. I am in favour of new Clause 6 basically because of the length of time people are now kept in custody on remand. Every hon. Member has brought to his attention constituency cases where people have been kept in custody on remand for four, five or six months, sometimes at the end being acquitted or given a non-custodial sentence.

Mr. Ernie Money (Ipswich)

Another worrying factor is that someone who is not going to serve a custodial sentence is extremely likely in the meantime to lose his job as a result of his remand in custody.

Mr. Mitchell

When a person is on remand in custody I imagine that unless he has a very good employer he will lose his job. Thus, if he is acquitted, not only has he spent a long time in prison but he has lost his job, and his family during that period will have had to suffer living on social security and the rest.

The second point which persuades me in favour of new Clause 6 is that made by the hon. and learned Member for Montgomery (Mr. Hooson), who said that it is important to put this guidance in legislative form because of the different practice as between one court and another. My lawyer friends will say that if one goes to court A one will get bail but in Court B one will get a remand in custody for the same type of offence. We know that certain magistrates, although they will not admit it, tend to look upon a remand in custody as, in effect, a punishment. For these two reasons, I support new Clause 6.

Mr. Ivor Stanbrook (Orpington)

These two new Clauses are a good example of what is, I believe, rather a bad habit in Parliament—attempting to fetter unreasonably the discretion of the courts, in this case by requiring the more liberal grant of bail. They attempt to do so by detailed specifications and instructions to the courts. Yet all these matters are at present taken into consideration by the courts. No one with knowledge of the way our courts work would claim that it would make the slightest difference to put these instructions into the Bill rather than in the present form of administrative instructions or advice.

The fact is that Parliament has not provided the courts with the means of remedying the underlying evil, which is the overcrowding of the lists. If cases were brought on for trial soon after the arrest of the accused, we should not be so concerned about bail. We should attack this evil much more vigorously and leave the question of bail to the good sense of the courts. In the Courts Act we have provided a more expeditious means of bringing to trial cases which come before Crown Courts. But they deal with only 5 per cent. or less of all criminal cases. It is time now to tackle the 95 per cent. of cases heard by magistrates and to make sure the magistrates have a means of bringing the cases on expeditiously. Then we shall not hear so much complaint about the refusal of bail.

12.30 a.m.

Mr. Peter Archer (Rowley Regis and Tipton)

I would like to add my protest to that of my hon. and learned Friend the Member for Dulwich (Mr. S. Csilkin) about the late hour at which the House is being called upon to debate these matters and the inevitable pressure in consequence to curtail the discussion

There is sometimes a tendency among those who manage these matters to think that penal reform is the concern only of the lawyers, and perhaps it could be placed on the record that the very substantial attendance tonight of hon. Members who are not lawyers indicates that this is a wholly false view. The reform would not benefit lawyers. They are not normally called upon to remain in a remand prison awaiting trial unconvicted.

Mr. Lewis Carter-Jones (Eccles)

I wish they were.

Mr. Archer

Some of my hon. Friends may take a different view. But even my hon. Friends will not remain unmoved by the reflection that every year 50,000 of our constituents who are not lawyers are placed in this position. It is a matter of some importance and it deserves to be taken seriously.

The hon. Member for Orpington (Mr. Stanbrook) puzzled me by advancing what I understood to be two arguments against the new Clause. He said that it was an unnecessary fetter on the discretion of the courts and was, therefore, to be deplored. Almost immediately afterwards he said that it would not make a ha' porth of difference to the way the courts administered the system of deciding on bail. I will not comment further on the argument. The juxtaposition of the hon. Member's two sen- tences was quite sufficient to answer his own argument.

I was privileged to raise some of these matters in an Adjournment debate on 26th May. I was very grateful to the Under-Secretary for the forthright way in which he answered at least some of the suggestions which were made about the administrative contribution which could be made to the solution of the problem. We discussed the unhappy conditions referred to by some of my hon. Friends tonight, in which many people spend weeks, and sometimes months in custody unconvioted and sometimes still unconvioted after trial, and in many cases genuinely innocent of any offence. It does not help to point to the alarming crime wave when we are discussing people who at the moment have not committed any crime.

In that debate we discussed the appalling delays before these cases are heard. The argument advanced by the hon. Member for Chippenham (Mr. Awdry), who was impressed by the number of people who commit offences while on bail, has already been answered by the hon. and learned Member for Montgomery (Mr. Hooson). If anyone is impressed by that figure he should consider that it could be reduced substantially if we reduced the amount of time people spent waiting for their cases to come up for trial.

If that time lag were reduced it would reduce the figure as a statistic, but I do not believe that anyone can seriously seek to argue that because some commit offences while they are on bail, everyone should be refused bail as a general principle. We spent most of that Adjournment debate discussing the actual principle to be applied by the courts in de ciding whether to grant bail, and I would have thought that there was nothing between the two sides of the House on that matter tonight.

Mr. Awdry

That is an unfair point against me. I have never suggested at any time that most applications should be refused. That was never my argument. My argument was that we should take into account this report published today in deciding what to do tonight.

Mr. Archer

If what the hon. Member was suggesting is relevant at all, it seems to me that it can only be relevant when directed to that argument. If it had some other relevance, it escaped me.

Going back to what was said by the Under-Secretary on 26th May, that would put out of court any difference of principle. He said: …the Government accept absolutely that the number of accused persons detained before trial should be the minimum, compatible with the interests of justice."—[Official Report, 26th May, 1972; Vol. 837, c. 1865.] As a formulation we would all accept that. We spent most of our time discussing the difficulties which face the courts, particularly as illustrated by Professor Gibbens, in the foreword to the Annual Report of the Howard League for 1969–70.

First, on the question of obtaining medical reports, referred to by my right hon. Friend the Member for Birkenhead (Mr. Dell), admittedly the Government are trying to find a solution to this. The Under-Secretary referred to the scheme at Holloway and said that that scheme had been expanded to include other prisons serving the London courts and would be extended to some parts of the provinces. We heard, too, how young people waiting for a report on their fitness for detention centre would be kept for examination on the spot by the police surgeon.

But it is useless having these administrative procedures available, if the courts cannot be persuaded to make use of them, and in the first five months of the Holloway scheme it was used on only one occasion. If the Government are to rely on administrative measures of that kind they will have to initiate a massive education of some of the courts which are asked to administer the scheme.

Secondly, Professor Gibbens illustrated the position of people remanded in custody simply because if released on bail they would have nowhere to go. It is true that the hon. Gentleman was able to tell the House that the Government had taken part in at least one pilot scheme with the Salvation Army, for the opening of a bail hostel at Booth House, but this is only the beginning of the exploration of how this problem can be met. It would not do to say that we must await the result of these schemes all over the country before the problem can be settled.

Finally, we spoke of the difficulty of people remanded in custody because they could not find satisfactory surety. I am not sure that I agree with the hon. and learned Member for Ruislip—Northwood (Mr. Crowder) when he spoke of the necessity for asking to see the colour of people's money before releasing on bail. I am not sure what contribution money or the promise of money is likely to make to ensuring that people attend for their trial. There may be a case where it makes a marginal contribution in deciding whether a man is likely to appear for trial, but money is a marginal consideration—

Mr. Crowder

Has the hon. and learned Member not been in the position of trying to get bail for a client who is in a position to put forward considerable sums of money, and has he not thought that in putting the money down he might be able to convince the court or judge that it was a bona fide request from a man with no previous conviction who was prepared to stand trial? It might help some of us in trying to get bail if we could, in those circumstances, put the money on the table.

Mr. Archer

I would not dissent from that as a proposition as to how the courts operate at present. But I would have thought we might try to persuade them to give less effect to this consideration when deciding to grant bail in future. Perhaps there is not so much between us.

Mr. Crowder

indicated assent.

Unhappily, it is too late tonight to elaborate further on these problems, and this is an unhappy fact, because there is still a great deal requiring to be said. I cannot help feeling that some courts still give the impression that they rather enjoy sending people to prison. I say that from experience. Of course, there are many more courts which have a much better standard but there are still some which give people that impression. I cannot help feeling that in requiring us to debate the matter at this late hour the Government have given an indication that they are indifferent to the problem.

Mr. Norman Fowler (Nottingham, South)

I listened with interest to the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) and found myself in a great deal of agreement with him until his last remark, which was quite an unworthy allegation to make. I do not think that courts basically enjoy that kind of thing.

Mr. Joseph Harper (Pontefract)

My hon. and learned Friend did not say that.

Mr. Fowler

I do not think that anyone, even the Opposition Whip, who has just arrived, would deny the seriousness of the question we are trying to debate. Surely the most significant figure that has been put forward about bail is that almost half of those who are denied bail are subsequently either acquitted or, more often than not, are not sent to prison. I realise that qualifications have to be made to that statement. Nevertheless, as a guiding principle that is clearly an unacceptable proportion.

I say that for two major reasons. First, prison must essentially be a place of last resort. It must be reserved for the undoubted criminal. Prison should be the severest punishment that the court can offer. It should not be used as a kind of social dustbin when the State can think of no other way of dealing with a particular man, and it should not be used when some other form of punishment is available. Secondly, it should not be used unnecessarily, because it blunts the effect of prison. It means that the prison staff are diverted from their main task.

With prisons already overstrained it is not reasonable to ask the prison staffs to do more. This is worth emphasising in the present context of unrest in some prisons. There is no doubt that in the last few years prisons have become overstrained. It should be made clear that this is not a problem that has suddenly grown up overnight. It has been with us for some time. We have known of the defects in prisons for a long time; we have known of the defects in Brixton for a long time; and we have known about the overcrowding and the inadequate buildings. What has prevented and still prevents even greater problems in our prisons is the efforts of the prison officers, governors and assistant governors. I am not sure that their efforts over the past decade have been sufficiently appreciated or that we have appreciated the difficulties under which they work. It is not an easy job by any stretch of the imagination.

What we can do is to try not to make the job more difficult. That is why it is important that we should not add unnecessarily to the burden. If we could improve the bail system, this is something which will add to the efficiency and effectiveness of the whole prison system. In principle, I have a great deal of sympathy with the Clause moved so moderately by the hon. and learned Member for Dulwich (Mr. S. C. Silkin). What I doubt is whether this Clause will have the effect which is intended. I believe that the problem needs a more complete approach than that provided by the Clause.

12.45 a.m.

One of the extraordinary features of this debate has been the lack of basic information necessary for the matter to be discussed intelligently. The Government have set up a working party to consider the workings of bail, but it should have been done several years ago. The last Home Office report on bail was that of its Research Unit in1960. There have been private reports by people like Michael Zander and the Cobden Trust. But the researcher is still driven back to the 1960 report of the Home Office Research Unit, and that does not reflect much credit on our efforts over the last decade.

This Amendment, even on the basis of present knowledge, does not really go to the heart of the problem. If an attempt were made to isolate one reason for the present situation, I believe that it would be that our courts do not have the necessary information upon which to base their decisions and judge whether they should give bail. This is where I disagree with the hon. and learned Member for Rowley Regis and Tipton. It is not that the courts want to remand in custody. All too often they do not have adequate information to justify bail.

Mr. Peter Archer

Does the hon. Gentleman agree that the report by Mr. Michael Zander in the Criminal Law Review indicates that in some cases there is a lack of curiosity on the part of courts to discover the necessary information?

Mr. Fowler

That may be so. However, in my view the essential message flowing from the reports of Michael Zander and the Cobden Trust is that not enough information is presented to our courts when they are making their decisions.

Mr. Money

One very grave difficulty here is that so many of those who are refused bail and are kept in custody are not represented. What is more, in the absence of any form of legal aid to apply to a judge in chambers the situation is intolerable for the unrepresented defendant.

Mr. Fowler

Clearly, that is an important point. However, I shall keep to my theme, though legal aid is a matter that I intended to mention. Basically, I ask for more information to be presented to courts. They want to know much more about a man's previous record, whether he has a steady job, about his family ties, and how long he has lived in the area concerned. Certainly if an accused person is legally represented, he stands a better chance of getting bail. But even that is not an invariable rule. I am not a lawyer, but I cannot help thinking that sometimes lawyers do not present to courts adequate information about those whom they represent—

Mr. Money


Mr. Fowler

As a matter of course, courts should have adequate information upon which to base their decisions.

Reinforcing what was said by my hon. Friend the Member for Chippenham (Mr. Awdry), I believe that courts should also know the police attitude to bail. After all, the police have a legitimate interest. They do not want to spend time searching for a person for whom perhaps they have spent a considerable time searching in any event. Least of all do they want a situation when someone on bail commits a further offence.

Although there is a clear need for reform, there are many important and serious issues which should be taken into account. Action should be taken when the working party which has been set up gives us the opportunity to take action. We should wait, I hope in confident belief, that the working party will recognise the urgency of the question that it is examining, and that there will be no unreasonable delay in presenting its report to the Home Office.

Mr. Ronald Brown (Shoreditch and Finsbury)

I have been horrified at the manner in which this issue is being discussed. We are talking about people and their problems.

The Home Secretary and I have had constant correspondence about certain cases. I will describe the case of Timothy Regan, which clearly identifies this problem. This is an interesting story. Timothy Regan was apprehended on 7th September, 1971, and remanded in custody. He was brought for trial on 17th November, having been remanded in custody until that date. His trial was then adjourned until 21st February, 1972. By that time I was having discussions with the Minister of State and his noble Friend the Lord Chancellor. I was told by the Lord Chancellor that the reason for this awfully long delay was that the trial was expected to take six weeks. The reason why this man was incarcerated during that time was that it was not possible to find a high court judge who could sit long enough to hear the case.

The Lord Chancellor then told me that this was a serious case which greatly concerned him. The man was alleged to have robbed and conspired to rob and under those circumstances the case had been listed for the high court. In all the circumstances he did not think that the delay was unreasonable. In the end the man was acquitted in March. 1972. Timothy Regan had spent six months incarcerated. The Lord Chancellor was satisfied that, whilst he had been incarcerated for six months, that was not an unreasonable delay.

When I was discussing the matter with the Minister of State he kindly and courteously explained to me the problem. He said that the delay was due to the fact that there was a congestion of business in the courts. He said that, whilst it was difficult, he assured me that he and the Home Secretary could not intervene in the matter. He said that he was sorry, wringing his hands in sorrow and saying how bad it was. But it was Timothy Regan who had been incarcerated. It was found six months later that he was not guilty, and then he was released.

I have something else to tell the House. When I raised this matter with the Minister and the Lord Chancellor, they were aware that they had had this man from 7th September, 1971, in category A, locked in his cell for 23½ hours a day for six months. It was absolutely outrageous. The Home Secretary said he was sorry but he could not do anything about it. The Lord Chancellor said that it was not unreasonable, that a high court judge could not be found to sit long enough.

It is quite reasonable for the House to debate this issue when, clearly, both the Lord Chancellor and the Home Secretary are utterly unable to deal with serious cases like this. My constituent has lost his job, his home and his family. He has nothing. When I asked the Home Secretary what he was going to do about it, he was going to do nothing. How can any hon. Member, whatever the hour, treat this matter lightly or academically?

Timothy Regan is a man of good repute who has now served six months in prison for no reason whatsoever. He had committed no crime, he was treated as a category "A" prisoner, incarcerated almost in solitary confinement, and nobody could do anything about it. The new Clause goes some way to prevent the Timothy Regans of this world being put in gaol without any cause or complaint.

Mr. Money

I shall support the new Clause for four reasons.

First, I do so for the reason expressed by my hon. Friend the Member for Nottingham, South (Mr. Fowler), that we are making the effective reform of prisons quite impossible because we are overloading them with large numbers of people who ought not to be there at all.

Secondly, there is an economic reason: that every time anybody is kept in custody for other than the most inevitable of reasons the State fines itself a very large sum of money indeed.

The third reason is that the remand conditions in which most prisoners are kept are, for a civilised country, utterly intolerable.

Fourthly, the circumstances in which an application to vary an arbitrary decision, made in the majority of cases by a non-qualified court, are heavily weighted against most prisoners.

Mr. Clinton Davis

I agree almost entirely with the speech of the hon. Member for Nottingham, South (Mr. Fowler). I know the hon. Gentleman has taken a profound interest in the subject of bail. His approach was distinctly more helpful than that of his hon. Friend the Member for Chippenham (Mr. Awdry). The hon. Gentleman correctly said that by itself the new Clause will not cure all the defects. That is right, because the new Clause depends upon the ability of courts to administer the bail provisions satisfactorily and wisely.

The mere fact that administrative reforms are and will continue to be needed docs not disentitle this House from taking the view that it is essential that the law needs to be changed and improved. In my view, this is what the Clause does.

I speak from some measure of practical experience. The Clause gives an emphasis which does not sufficiently exist to a presumption in favour of bail. It offers guidelines which do not satisfactorily exist now.

The hon. Member for Nottingham, South referred to information not being available to courts. That is surely a matter for the courts themselves. A court which is careful in its detail and approach towards bail will seek out the information and afford legal aid. But a court which is rushed, which has a heavy list, may not be desperately interested in ferreting out all the necessary information about a man's background, family, job, and prospects if he is denied bail. This is the fault of the courts. I agree that the Clause will not cure the courts which fail to take a positive approach to these matters.

I refer to the hon. Member for Chippenham who, like myself, is a solicitor and a joint secretary of the all-party solicitors group. I was disappointed that the hon. Gentleman sought to adduce the argument that a change of this character would be resented by the police. I suppose he was saying in rather more sophisticated language what those two anonymous C.I.D. officers said in an interview with The Times last August: It is frustrating when you arrest a man against great odds and then have a strong plea for custody turned down. Even if bail is refused the man can appeal to a judge and if it is a vacation judge with little or no experience in the field of crime he will say: 'Well, if will be six months before the case carries up; what about the liberty of the individual?' and give him bail. Then the man goes off and commits another crime so that he can afford the lawyer who will defend him on the first one. That is often said by members of the public, but it is sad when generalisations like that are boldly made by police officers who should know better. Seventy-nine per cent. of the objections made by the police to bail are upheld by the courts.

1.0 a.m.

It is right that we should investigate administrative defects at the same time. On 26th May I raised with the Minister of State and with the Under-Secretary the question of how the Department's circular of 14th May, 1971, was operating. That was a circular requiring a governor to inform courts when reports were ready so that a hearing could be expedited or the court would be able to consider releasing the defendant on bail pending a hearing if there was to be further delay. This is the reply I received: The results have been disappointing, mainly because of the difficulty which courts find in bringing together all the people concerned in a case on a date earlier than one which has already been fixed. The courts will be encouraged to adopt 14 days instead of 21 days as the normal period for remand where local probation resources are sufficient for reports to be prepared within the shorter period. That answer is not very helpful. The circular has been in existence for a year. Practical experience teaches us that few courts and few prisons take advantage of it. The mere fact that the period will be reduced will not help greatly, because doctors, for instance, will say that the reports are not available.

This is a matter which must cause some degree of disquiet. I am not satisfied that all courts apply all the principles enunciated in the Criminal Justice Act, 1967, although the hon. Member for Chippenham thinks that they do. I still believe that many courts do not accept even the presumption of innocence. Many courts accept passively anything that the police say in objection to bail.

One of my colleagues appearing at Willesden made an application for bail and was told by the chairman of the bench "On the advice of the police, we refuse bail." It was as simple as that. My colleague was told, in effect, that he was guilty of effrontery for suggesting that the police could be wrong.

Some courts fail to give proper consideration to all the reasons which should justify the granting of bail. Some courts impose, unquestionably, the most harsh terms in connection with bail. I will quote an example of this which occurred to some of my constituents who appeared at Old Street Magistrates' Court before Mr. Neil McElligott not very long ago. The defendants were members of what is known as the Claimants Union. Mr. McElligott happens not to like certain members of the Claimants Union. They were alleged to have done damage to property amounting to not more than £100. Each was bound over in his own recognisance of £100 and was required to find sureties of £250, although the police were not asking for such terms. They found the sureties and were granted bail.

At the committal proceedings the police still did not object to bail and still did not require these harsh terms, but the learned magistrate decided that these terms were not sufficient and that they would have to report daily at the police station although there had been no complaints by the police about them and there had been no requirements by the police. It just happened to be a matter of whim, in my submission, on the part of the particular magistrate. That is a disgraceful state of affairs. Of course he did not take the trouble to investigate the matter in sufficient detail.

On new Clause 8 there is a matter which affects one of my constituents. It is a matter to which my hon. Friend the Member for Manchester, Blackley (Mr. Rose) referred in passing. It affects the case of Mr. Errol Folkes, who lives in Dalston, in my constituency. He was kept in a remand home and then in a detention centre from 9th September, 1971, to 7th March this year. Indeed, had it not been for the intervention of a black community welfare organisation it is probable that he would have remained in detention for another two months. The sad chronicle of events affecting this constituent were these.

He went to Dalston Police Station in order to discuss a certain matter with the police, and he was told then that the police had been looking for him since October, 1970, and he was charged with entering a flat as a trespasser with intent to steal. He appeared at North London magistrates' court the following day and was remanded on bail in the sum of £50 in his own recognisance and he had to provide a surety of £50, which was forthcoming; namely from his sister.

He was granted legal aid, and his case was listed for hearing at the Inner London Crown Court within two months because it was thought, erroneously, that he was going to plead guilty. He had no intention of doing so. He pleaded not guilty when he appeared at the court, and then his case was adjourned and he was granted bail on the same terms as before. The difficulty then was that his sister, who was a nurse, was on her duties in hospital and could not attend the court. So he was remanded in custody.

He had to spend the next few days in the cells because his sister was unable to leave the hospital. His sister made a large number of inquiries about how she could make herself available as a surety and she went from Dalston Police Station to the court and Inner London Crown Court and she was constantly put off. It seems somehow or other that nobody seemed to want to know about this man still languishing in jail.

He was at Ashford Remand Centre. Apparently some complaints were made about his legal representation as well, but the fact was that the sister, this poor girl, was so completely bemused, that she did not know where to turn to discover how this man could be released. Then he was taken to Latchmere House Detention Centre.

Eventually, after all this time, a community organisation intervened, and the man was released. But he had been acquitted, and that is why he was ultimately released.

Lord Dunboyne, the judge at the time, had this to say: The whole thing is horrifying. I am ordering that the matter be reported to the Home Secretary. One does not know at this moment what the Home Secretary has done. I think we are entitled to know tonight that the Home Secretary is actively intervening in this matter to ensure that justice is done to this man. Clearly, this man has been denied justice to which he was entitled in exactly the same way as Thomas Regan, a constituent of my hon. Friend, also has been denied justice.

The Minister of State, Home Office (Mr. Mark Carlisle)

I do not dispute many of the facts mentioned by the hon. Gentleman but, in fairness, he should tell the House that apparently the defendant had a solicitor acting for him the whole time.

Mr. Davis

I referred to that. I said that allegations of negligence were being made in the case. I do not know the details, but the fact remains that the Home Office should actively and immediately investigate the matter since a complaint has been made by the learned judge. This is just the sort of case that would be dealt with adequately by new Clause 8, and an enormously strong case has already been made for it by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin). There is a good deal wrong with the procedure for granting bail, and I fear that the Home Office is far too complacent.

Mr. John Loveridge (Hornchurch)

I hope that the Government will give careful thought to the question of bail as so many hon. Members on both sides of the House have expressed anxiety and concern over it.

I was very pleased to hear my hon. and learned Friend the Member for Ruislip—Northwood (Mr. Crowder) commend the efficiency of magistrates, particulary so since I sat on a lay bench for a number of years. It is a most efficient system of bringing justice to the public, but if there is one place where it has a weakness, it is on the question of bail.

My hon. and learned Friend went on to say that a farmer in Devon who was sitting on the bench would know how to handle the question of bail. I am sure that in that he is correct, because a farmer in Devon sitting on a lay bench would have far more time than any lay magistrate in a busy London court, and it is here that the difficulty arises.

Often adequate time is not given by benches to consider the question of bail at the point when the issue arises. If the principles put forward in the new Clause were to be embodied in the legislation it would ensure that full consideration could be given to the matter in a formal manner because of the formal delay which the legislation would bring to the court.

The police often oppose bail and no questions are asked. The police may not be asked whether the man has a record. They may not be asked why they oppose bail. An experienced magistrate—and it requires a certain persistence for a magistrate to achieve this, especially if he is not in the chair—will always intervene at that point to ask the police officer questions. Too many magistrates do not do that and the speed of the process, without any formal delay at that point, enables the questions to go by default.

Although I am not happy with the Clause as it stands, I accept the principles that are expressed in it, and I hope that the Government will take some action to add it to the legislation.

Mr. Edward Lyons (Bradford, East)

The two main considerations for bail are, first, to keep people out of prison who should not be there, and, secondly, to reduce overcrowding among the prison population.

Though most of our great prisons are more than 100 years old, the Government are planning to close only one—that at Oxford in 1980. That means that despite the enlarged prison building programme the Government feel that there will be prison overcrowding which will prevent them from dispensing with old prisons such as the one at Leeds for probably another 20 or 30 years.

1.15 a.m.

In these circumstances it behoves us to see whether people are being denied bail who should get it. Two points arise in a report in the Criminal Law Review which indicates that people who should get bail are being denied it. First, when the police oppose bail the stipendiary magistrates grant it twice as often as lay magistrates. That shows that lay magistrates are a little shy of disagreeing with the police. Second, where the police oppose bail, accused who are represented by lawyers have twice the chance of getting it compared with those who are not represented. That shows that lay magistrates require to be stiffened in their resolve to resist the police on proper occasions by defence lawyers. Two-thirds of all people considered for bail are not represented by a lawyer. It follows that if all people wanting bail which the police oppose were represented by lawyers the numbers of people going into temporary custody would be substantially reduced.

There is, therefore, great need, in the absence of lawyers for everybody, for the law to be clearly stated, and the advantage of the new Clause so ably worded by my right hon. and learned Friend is that it states that there should be a presumption in favour of bail unless that presumption is successfully challenged.

My final point relates to people of no fixed abode. Probably the largest category of people who are remanded in custody are those with no fixed abode. The only consideration for them is, will they or will they not abscond? Section 18 of the 1967 Acts says that no fixed abode is a consideration to be taken into account, and it is perhaps the reason most commonly given by the police for objecting to bail. Too many magistrates take the view that if a man has no fixed abode he should go to prison. That really is not good enough. It means using prisons as common lodging houses—with bars.

In these circumstances we should make a fresh approach, and we need the law clearly set out for lay magistrates who need stiffening in dealing with police objections.

Mr. Neville Sandelson (Hayes and Harlington)

I am in substantial agreement with almost everything my hon. Friend has said, but I wonder if he would clarify this one point. Where does he think a defendant with no fixed abode should be sent by the magistrates? I do not ask that in any way to derogate from the force of my hon. Friend's arguments, but would my hon. Friend explain that to the House?

Mr. Lyons

The answer, clearly, is that there should be bail hostels, but often, even that would not be the answer because a man who is in lodgings may be labelled as of no fixed abode, and, anyway, if a man wishes to abscond, he can abscond from a permanent address just as he can from a temporary one. Considering that many of the offences for which people are remanded in custody are relatively minor ones, it is wrong to regard the description of no fixed abode as a passport to temporary imprisonment.

Mr. Michael Havers (Wimbledon)

I oppose this new Clause on the general principle that I do not like to see the discretion of the court restricted. The considerations advanced so far for the Clause are not wide enough. One must consider how serious the crime is. There has been talk of interference with witnesses. One finds witnesses who are frightened. There may be large sums of money involved. There has been no real consideration of the gravity of the crime. The new Clause does not deal with these matters. It is late and I do not propose to say any more about that.

However, I should like to say something about the two cases with which the hon. Member for Hackney, Central (Mr. Clinton Davis) dealt. He spoke of the chairman of Willesden magistrates court whom he criticised for accepting police evidence when it was unfavourable to the defendant. Then he spoke about the learned stipendiary magistrate at Old Street and criticised him for not accepting police evidence when it was favourable to the defendant. It is very strange that the hon. Gentleman does not seem to calculate for a moment that a magistrate should have independence of mind about his decision.

Mr. Clinton Davis

The hon. and learned Gentleman has not seen the force of what I said about the chairman of Willesden magistrates. What he indicated was that the defending lawyer had some effrontery in even suggesting that the police could be wrong.

Mr. Havers

The point I sought to make was simply this. The hon. Gentleman says that if the police at the Willesden court say that a man should not be given bail he need not accept it; because the police at Old Street do not oppose bail Mr. McElligott must grant it. That must be nonsense, otherwise there is no point in having magistrates.

Dame Irene Ward (Tynemouth)

There is only one point I should like my hon. and learned Friend the Minister of State to answer. As a lay magistrate, I may require stiffening; but many people, particularly among hon. Gentlemen opposite, require more stiffening than I require.

It horrifies me that in all the arguments adduced on both sides of the House by people who are experienced in these matters nobody has mentioned one of the most devastating problems about bail. Many men and women who are brought to trial are subnormal. This presents considerable difficulty. One of the most disturbing features is that many of these poor, unfortunate creatures have very little knowledge of procedure.

I wonder how in our legal system we can provide the human treatment which is necessary for these people. Often the offences which they commit are committed because they are not in full possession of their senses. In any inquiry into the courts, bail, legal representation, and so on, we must give attention to the number of subnormal people who come before the courts and who make it very difficult for magistrates to make a reasonable, sensible and humane decision.

I hope that my hon. and learned Friend will have some sympathy with magistrates who have to deal with subnormal people. I am a strong advocate of effective treatment for real criminals, but we must find a satisfactory way of dealing humanely with those who are subnormal.

Mr. Carlisle

We dealt with the whole subject of bail fully in Committee and we have returned to it tonight. I do not for a moment regret the fact that we have gone over much of the same ground as we went over in Committee and that hon. Members who did not have an opportunity to take part in our Committee deliberations have had an opportunity to express their views on the subject.

I of course accept that the whole question of bail—the question of the remand in custody of those who are deemed to be innocent until roved guilty—is important. It is undoubtedly important for the individual who is deprived of bail and is remanded in custody and I fully accept what the hon. and learned Member for Dulwich (Mr. S. C. Silkin) said about the grave hardship that this must mean to a man who is remanded in custody and who is then found to be not guilty of any offence. It is equally important from the point of view of those who are responsible for the prison population of this country.

As my right hon. Friend the Member for Ashford (Mr. Deedes) pointed out, we are faced with a severe problem of over crowding in our prisons, and it is greatest in the local prisons where remands take place. One cannot have been involved at the Home Office for two years without being conscious of the fact that about 10 per cent. of the prison population at any one time is unconvicted or unsen-tenced. I therefore accept that this is an important question and that people should be concerned about whether the right criteria are being used in the granting of bail.

As my hon. Friend the Member for Chippenham (Mr. Awdry) said, this is an equally important matter for society because just as it is important that people should not be remanded in custody who could rightly be remanded on bail, so it is equally important that there should not be people freely remanded on bail if, having been committed on serious charges, they might commit other offences while awaiting trial.

No hon. Member wishes to see people being unnecessarily remanded in custody and of course I accept, as I said in Committee and as my hon. Friend said when answering a recent Adjournment debate, and the Home Office accepts, that bail should always be granted in appropriate cases. I go further and say that I do not believe that anybody seriously disputes the principles set out in the proposed new Clause as the basis or grounds on which the question of bail or custody should be judged.

Where the area of disagreement between us lies, if it is genuine disagreement, is, first, that I cannot accept what seems to be underlying all the speeches made by hon. Gentlemen opposite—the suggestion that people are being wantonly remanded in custody when they should be on bail. I was somewhat surprised to hear the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) say that there were courts which gave the impression that they enjoyed sending people to prison. That was not a fair assessment of the courts, either lay or those with qualified chairmen.

I do not believe that anybody who has appeared in our courts and has had the experience, which I have not had, of sitting as a magistrate has enjoyed the experience of either sending people to prison or remanding them in custody. I do not accept that that is done wantonly.

Mr. Peter Archer

I said that some courts gave that impression. If the hon. and learned Gentleman has never met anyone who has left a court with that impression, I am amazed.

1.30 a.m.

Mr. Carlisle

The hon. and learned Gentleman said "some" but, with respect, he said it in a way that rather implied that there were courts which just happily sent people to prison without caring about it. I do not accept that that is so.

The second area of disagreement—it seems the only one that is to matter if we are to vote on the new Clause tonight—is that neither I nor the Government accept that imposing further statutory restrictions on the courts in remanding people in custody, particularly in as complicated a method as the new Clause devises, will achieve the end which the sponsors of the new Clause desire. Further statutory restrictions will not make a substantial difference to the number of people being remanded on bail or remanded in custody.

Mr. Money

Will my hon. and learned Friend deal with the frightening question raised by the hon. Member for Bradford, East (Mr. Edward Lyons), of the defendant of no fixed abode who appears for the most trivial offences, such as drunk and disorderly or malicious damage, and who in those circumstances is remanded in custody because he is of no fixed abode when society does not necessarily worry about the fact that he does not have a fixed abode when he is brought before the court?

Mr. Carlisle

With respect to my hon. Friend, I have sat in the Chamber for two hours and 20 minutes and I have been speaking for only about three minutes so far. I was coming to that point.

But before that, I make a general observation. Despite what has been said from both sides of the House, the proportion of those remanded who are remanded on bail is rising each year and the proportion of those remanded who are remanded in custody is becoming smaller. I believe and have always believed that there has to be a far greater future in, firstly, attempting to reduce the time people spend in custody on remand. I take up the points made about that by the hon. Member for Southampton, Itchen (Mr. R. C. Mitchell) and by my hon. Friend the Member for Orpington (Mr. Stanbrook). Far more is to be gained by attempting to provide alternative facilities rather than trying to impose, as the new Clause does, further statutory restrictions on the courts.

We have made it clear that we are concerned about this. Through administrative action we are dealing with the type of wider facilities to provide, for example, for many of the reports on people, which today are made when they are in custody, to be made in future when they are on bail.

I remind the House of the administrative actions we have taken in this matter. I come at once to the point which my hon. Friend the Member for Ipswich (Mr. Money) asked me to take up, that is, the question raised by the hon. Member for Bradford, East (Mr. Edward Lyons) about the man who is remanded in custody because he is of no fixed abode. I do not believe that the provisions of the new Clause will seriously influence magistrates in deciding whether to remand such a person in custody. It is far more important that we should have available in this country a system of bail hostels, so that there is a place to which that person of no fixed abode can be remanded. I am bound to remind the hon. Gentleman that no only did my right hon. Friend last year open the first-ever bail hostel in this country but that the Bill provides by Clause 43, for the first time, power for the Government to grant-aid hostels to be provided for this purpose. I believe it is far more important to have administrative action to deal with such matters than merely to pass new Clauses of this nature.

Comments have been made about medical reports. I remind the hon. Member for Hackney, Central (Mr. Clinton Davis) and others that we have over the last two years provided for out-patient facilities to be available at Holloway Prison. The right hon. Member for Birkenhead (Mr. Dell) says that there are not enough of them and those that are available are not being used. Of course, when one provides something for the first time it obviously, as I said in Committee, takes a certain time for the courts to get used to the fact that the facilities are available. At least we are entitled to take some credit for the fact that we have these facilities, which were not available 18 months ago. We are proposing shortly to extend them to Brixton Prison, so that the courts in the London area when remanding people for medical reports will be able to do so for the first time on bail rather than remand in custody.

Then, as hon. Member for Hackney, Central agreed, although he said we had not done much about it, we have requested prison governors to inform the court when a report is available so that the case can come rapidly back before the court. As the hon. Gentleman also said, in practice we have found that this is not terribly satisfactory, since it is difficult to get together again all the people concerned in hearing the case when it was remanded. But we have asked that there should be remands not for 21 days, as in the past, but for 14 days because reports can be available in that time.

With the provisions given to the courts and to use bail hostels and outpatient facilities when considering remands, and with the passing of the Courts Act, which we all support—for this is a non-party matter—in the hope that it will succeed in ridding us of some of the delays to which the hon. Member for Southampton, Itchen called attention, we believe that we are making a far more important contribution than would the terms of new Clause 6.

I sympathise with what the hon. Member for Shoreditch and Finsbury (Mr. Ronald Brown) said so eloquently about his constituent. But I do not believe that there is a single word in new Clause 6 that could in any way have prevented his constituent's experience. What is much more important is if we can reduce the time between committal for trial and the date of the trial. That is what will help and not the passing of a new Clause bringing in a thing called the "bail question", which would mean that every time a defendant appeared for remand the magistrate, knowing the nature of the offence, would have to ask him whether he wished to have bail although that magistrate would know that he would refuse such application.

Mr. Jeffrey Thomas (Abertillery)

Will the hon. and learned Gentleman tell us how many bail hostels are available at the moment and how many are planned throughout the country in the next twelve months?

Mr. Carlisle

There is one in the country, which was opened by my right hon. Friend, and for the first time this Bill gives the Government power, which no Government had before, to grant aid for the provision of future bail hostels. We believe there is need for this and we are tackling that need, which had not previously been tackled.

A feeling seems to have crept into the debate that many of the problems of delay which the hon. Member for Shore-ditch and Finsbury mentioned would in the courts somehow be affected or dealt with by new Clause 6. I do not believe it. The new Clause seems to attempt to do three things. First, it attempts to set out in statutory form very much of what is in the 1967 Act as the principles on which bail is granted or refused. The hon. Gentleman said these were deficient because they did not deal with the question of interference with witnesses. As my hon. and learned Friend the Member for Wimbledon (Mr. Havers) pointed out, there may be other conditions but no one doubts that this is the sort of thing the courts consider.

Secondly, the new Clause raises that strange animal called the "bail question." which means that everyone on every remand must always be asked whether he wishes to apply for bail. I repeat what I said in Committee, although I was criticised for it then—that it surely entails something of a cat and mouse existence if the magistrates are to be invited to ask a defendant, "Do you wish to apply for bail?" when it is clear that they propose to refuse it if he does apply. I do not see any purpose in the question having to be asked on that occasion.

Finally it attempts to provide for the wider application of legal aid on bail applications, and this is a serious problem. To that I would say two things. I think the Opposition have under-estimated the fact that under the provisions of the Courts Act anyone who is committed for trial—and it is on the committals for trial that the seriously long periods of remands in custody occur—has the right on committal to appeal against the refusal of bail to the court of trial, and his legal aid certificate, if granted for him for that trial, covers that appeal. I believe that will be a more satisfactory method of appeal than the need in the past to appeal to a judge in chambers, which usually means a judge in London, irrespective of the court at which the person is committed.

I believe that the Opposition have overlooked the provisions of the Legal Advice and Assistance Bill which will enable the courts to invite a solicitor who is in the precincts of the court to appear under the £25 scheme if any defendant appears before them unrepresented. It is quite clear that he can make an application for bail on that person's behalf and advise him as to his rights. Therefore I do not believe that the genuine concern often expressed about the need for legal aid to appeal to a judge in chambers is anywhere near as great now, as a result of the Courts Act, as it was in the past, and I believe that the overwhelming argument of the lack of any sanction against everybody choosing to appeal so that the meritorious appeals get held up for longer periods far outweighs any need that exists.

The purpose of new Clause 8 is that the Home Secretary should be notified that a person has been in custody for two or three months without being tried. I would not argue about the desire behind the Clause. We have arrangements now under which governors are asked to bring to the notice of the courts cases where people have been awaiting trial for substantial periods. As a result of the case raised by the hon. Member for Hackney, Central we must see whether the provisions are adequate and whether the safeguards are sufficient. But there is no point in a reference to the Home Secretary. He can do very little about it. What if a governor reports to the Home Secretary that someone has been awaiting trial for three months? The Home Secretary has no control over the lists at the Old Bailey or the Inner London Sessions, and he can do nothing. It would be better that the governor should report to the court administrators on cases that have been awaiting trial for a considerable period.

Mr. S. C. Silkin

I wonder whether the Minister of State has not misunderstood the purpose of the new Clause. Part of the Home Secretary's responsibility is to oversee this whole question. How can he do so unless he gets the information? It is no use from that point of view for the governor to report to the court.

1.45 a.m.

Mr. Carlisle

I think, with respect, that probably the Home Secretary is always in a position to get that information. Parliamentary Questions often require the Home Secretary to produce it.

I understand the purpose of specifically drawing to the attention of the Home Secretary cases of custody over a long period, but the purpose is presumably to get trials brought on more quickly and the Home Secretary has no power to do that. However, I would be prepared to consider whether we could make arrangements for governors of remand homes to draw to the attention of the new administrators under the Courts Act cases in which a long period has been spent on remand.

The right hon. Member for Birken-head asked many questions. I concede at once, and I conceded reasonably handsomely to him, certainly in my letter, that I was wrong in the law I expressed, but I do not concede that I necessarily made the same mistake in Committee.

Clearly, Section 18 of the 1967 Act covers remands after conviction and before sentence. I accept that, and that my statement to the contrary was wrong, but I do not accept that it follows that it covers all Section 14 applications for remand and that since there are so many therefore the courts cannot be applying Section 18(5) of the 1967 Act. The fallacy in the argument is that the right hon. Member ignored the fact that Section 18 is limited to cases which are summary cases or hybrid cases, and does not deal with indictable cases except where the accused is dealt with summarily. Unless these are included as summary cases rather than indictable cases, it is impossible to say whether Section 18 is adequately used.

Mr. Dell

The Minister is indicating a fault in Section 18 which I pointed out in Committee, and which would be repaired by the new Clause, but which the Minister is refusing to repair. As for the implication of the admission of error, he drew that implication in Committee and he was therefore saying that he could not understand the extent of remanding in custody if Section 18 covered Section 14(3) of the Magistrates' Courts Act.

Mr. Carlisle

I do not want to get into a legal argument with the right hon. Member. I said that all Section 14 remands were covered by Section 18 of the 1967 Act. I should be the last to dispute the view expressed by many hon. Members today that a decision by the magistrates on whether bail should be granted is one of immense importance. I should be the last to dispute that where it is appropriated, bail should always be granted. In the judicial process I believe that there is, in practice, a bias in favour of bail and that there is a presumption for the individual who appears before the court, and that magistrates start by wishing to satisfy themselves, or feeling that they have to be satisfied, that they should remand a person in custody.

This new Clause goes wrong because it is unduly complicated, unnecessary, and undesirable because it puts greater statutory fetters on what should be as freely as possible within the discretion of the courts. If we were concerned only about those remanded in custody in overcrowded conditions, this House would do better to concern itself with the need for a prison building programme to reduce overcrowding than with the need to provide bail hostels, and with the need to have administrative action to attempt to reduce the length of time people spend in custody rather than an attempt to fetter the courts further with provisions such as this new Clause.

Sir Elwyn Jones

The fact that this debate has gone on for so long at this time is an indication of the importance that the House attaches to the subject. I suspect that the Home Secretary will feel it deplorable that we are having to debate this at this time in the morning. It is a reflection on the complete chaos of the Government's legislative programme. However, I do not want to introduce any party political observations, tempting as it is at this hour to do so, bearing in mind that in this serious and informed debate opinion across the Chamber has reflected the anxiety we all feel about the state of the law, described by one hon. Member as "unacceptable" and which I would describe as deplorable. It is deplorable because it is both unjust and inefficient.

That is the message that has emerged from this debate. The statistical basis for saying that the present system and the present state of the law is unjust and inefficient has been stated more than once. The statistics for 1970 show that in England and Wales 2,472 persons who were remanded in custody pending trial were found not guilty and 29,267 others did not receive an immediate or custodial sentence.

I am not suggesting that all those 32,000 men and women should have been given bail. There could have been some unexpected acquittals. There may have emerged, in the case or during the time that they spent in custody, evidence not previously available which made a custodial sentence inappropriate. I am sure there is no doubt that in the majority of those cases remand in custody was both unnecessary and in its consequence unjust. I was impressed with some observations of Lord Justice Lawton, who is not exactly a "softie" in administration of justice, who some time ago said: Loss of liberty is an inappropriate, useless and expensive sanction for about three-quarters of those who now find themselves in custody. That is certainly true as a general proposition; it is undoubtedly true of those who are remanded in custody awaiting trial. I thought that the right hon. Member for Ashford (Mr. Deedes) dismissed rather too lightly the injustice of this situation.

It is sometimes said that these debates on the administration of justice are arid lawyers' picnics. It was admirable to hear the strident voice of my hon. Friend the Member for Shoreditch and Finsbury (Mr. Ronald Brown) saying that we are talking about human beings—men about whom it may be said "There but for the grace of God go I". This is the humane approach which has been reflected in this serious debate.

That thousands of our fellow citizens are unnecessarily kept in the appalling conditions that exist, for instance, at Brix-ton, is intolerable and should not be tolerated longer. We support this Clause because it will help at least to diminish this state of affairs. We are not concerned with discussing the Brixton situation but no doubt in due course the Home Secretary will let us hear his views on the matters that have been raised by the right hon. Member for Ashford and others.

Of one thing I am sure. The greatest grievance that the men in Brixton are feeling is that they are being kept in custody for so long before their trial. That they should wait there for months and that many of them should be acquitted—that many of them are not sent to prison—leaves a bitter taste in their mouths in view of the basic principle of our criminal law that every man is presumed innocent until he is proved guilty. I venture to think that this is the clue to the Brixton problem, and not merely the conditions which prevail there.

This Amendment will help deal with the problem because it will make more likely the granting of more remands without custody. I agree that it will not solve the problem. Clearly, administrative measures like bail hostels and community service instead of incarceration are to be supported. But it is no use having excellent administrative arrangements while continuing to fill gaols unnecessarily in the way in which we are at present.

The advantage of the new version of the present Section 18 of the 1967 Act is that it states the principles clearly and generally. So far from being an excessive restriction on the discretion of the court, it is really far less restrictive than the peg pointing provisions of Section 18, which is having precisely the effect of more people going to prison than need be, whereas the impetus of the draft that we propose will be exactly in the opposite direction. As the hon. and learned Member for Montgomery (Mr. Hooson) said, there is nothing revolutionary in what is proposed in the new Clause, and there is nothing which fails to take account of the protection of public safety. It is a most moderate and responsible draft. But it will concentrate the minds of magistrates' courts, where most of the problems arise, on the principles which should be applied, including the necessity of enabling the persons concerned to know that they have the right to apply for bail.

It may be the fault of the lawyers, but it is extraordinary how rarely the citizen fully realises the rights that he has when it comes to the courts. I am inclined to favour the institution of the defending solicitor which is being tried so interestingly in Bristol. It is the case that the bewildered, harassed citizen in court does not know where to turn and what his rights are, and I believe that it is right that we as a Parliament should set out a code of procedure that magistrates should follow. There is a great advantage in stating positively in an Act of Parliament, as we have done in this proposed Clause, that the presumption of the court shall be in favour of the grant of bail.

What is of special importance in the Amendment is the necessity to extend the area of legal aid in respect of bail. The Minister of State drew a somewhat heavy veil over that part of the Clause. I found his reply very disappointing. He showed a sympathetic approach to these problems with great ability in Committee, where his contributions were quite outstanding on many occasions. I am profoundly disappointed by the speech that the Minister has made tonight. The proposals that we have, so far from over-elaborating and over-simplifying the powers of the courts, will amplify and

simplify them. They will have the effect of concentrating the minds of the courts on the principles which the hon. and learned Gentleman apparently approves, as does his noble Friend the Lord Chancellor.

To say that this will be of no assistance is an avoidance of the problem. It is because of our disappointment with him and the failure to seize an advantage that comes so rarely to us in having Criminal Justice Bills before the House that I advise the House to support these new Clauses in the Division Lobby. I hope that hon. and learned Members and hon. and non-learned Members on both sides of the House who have supported these Clauses will indicate that support in an effective way in the Division Lobby.

Question put, That the Clause be read a Second time: —

The House divided: Ayes 103, Noes 151.

Division No. 211.] AYES [2.0 a.m.
Archer, Peter (Rowley Regis) Griffiths, Eddie (Brightside) Palmer, Arthur
Ashton, Joe Hamilton, James (Bothwell) Parry, Robert (Liverpool, Exchange)
Atkinson, Norman Hamling, William Pavitt, Laurie
Bagier, Gordon A. T. Harrison, Walter (Wakefield) Pendry, Tom
Bishop, E. S. Heffer, Eric S. Pentland, Norman
Blenkinsop, Arthur Hooson, Emlyn Perry, Ernest G.
Booth, Albert Horam, John Prescott, John
Brown, Ronald (Shoreditch & F'bury) Jenkins, Rt. Hn. Roy (Stechford) Roderick, Caerwyn E.(Br'c'n&R'dnor)
Buchan, Norman Jones,Rt.Hn.Sir Elwyn(W. Ham, S.) Rodgers, William (Stockton-on-Tees)
Carmichael, Neil Kaufman, Gerald Roper, John
Carter-Jones, Lewis (Eccles) Kinnock, Neil Rose, Paul B.
Castle, Rt. Hn. Barbara Lamborn, Harry Ross, Rt. Hn. William (Kilmarnock)
Cocks, Michael (Bristol, S.) Lamond, James Sandelson, Neville
Cohen, Stanley Latham, Arthur Silkin, Rt. Hn. John (Deptford)
Concannon, J. D. Leonard, Dick Silkin, Hn. S. C. (Dulwich)
Crawshaw, Richard Lestor, Miss Joan Sillars, James
Crosland, Rt. Hn. Anthony Loughlin, Charles Skinner, Dennis
Cunningham, G. (Islington, S.W.) Lyon, Alexander W. (York) Smith, John (Lanarkshire, N.)
Dalyell, Tam Lyons, Edward (Bradford, E.) Spearing, Nigel
Davies, Ifor (Gower) McBride, Neil Summerskill, Hn. Dr. Shirley
Davis, Clinton (Hackney, C.) McElhone, Frank Thomas, Rt. Hn. George (Cardiff,W.)
Davis, Terry (Bromsgrove) Mackenzie, Gregor Thomas, Jeffrey (Abertillery)
Deakins, Eric Maclennan, Robert Thomson, Rt.Hn.G.(Dundee, E.)
Dell, Rt. Hn. Edmund Mahon, Simon (Bootle) Urwin, T. W.
Doig, Peter Mallalieu, J. P. W. (Huddersfield, E.) Varley, Eric G.
Dormand, J. D. Marsden, F. Walker, Harold (Doncaster)
Douglas-Mann, Bruce Mayhew, Christopher Wellbeloved, James
Dunn, James A. Meacher, Michael Wells, William (Walsall, N.)
Eadie, Alex Mellish, Rt. Hn. Robert Whitehead, Phillip
English, Michael Mikardo, Ian Wilson, William (Coventry, S.)
Evans, Fred Miller, Dr. M. S. Woof, Robert
Ewing, Harry Mitchell, R. C. (S'hampton, Itchen)
Faulds, Andrew Money, Ernle TELLERS FOR THE AYES:
Fitch, Alan (Wigan) Morgan, Elystan (Cardiganshire)
Foot, Michael Morris, Charles R. (Openshaw) Mr. Ernest Armstrong and Mr. Joseph Harper.
Fraser. John (Norwood) Oakes, Gordon
Allason, James (Hemel Hempstead) Benyon, W. Bray, Ronald
Astor, John Biffen, John Brinton, Sir Tatton
Atkins, Humphrey Biggs-Davison, John Brocklebank-Fowler, Christopher
Awdry, Daniel Boscawen, Robert Bruce-Gardyne, J.
Baker, Kenneth (St. Marylebone) Bossom, Sir Clive Bryan, Paul
Buck, Antony Hicks, Robert Owen, Idris (Stockport, N.)
Burden, F. A. Hiley, Joseph Page, John (Harrow, W.)
Carlisle, Mark Hill, James (Southampton, Test) Parkinson, Cecil
Chapman, Sydney Holt, Miss Mary Percival, Ian
Chataway, Rt. Hn. Christopher Hornby, Richard Powell, Rt. Hn. J. Enoch
Chichester-Clark, R. Hornsby-Smith. Rt. Hn. Dame Patricia Pym, Rt. Hn. Francis
Clarke, Kenneth (Rushcliffe) Howell, David (Guildford) Raison, Timothy
Clegg, Walter Howell, Ralph (Norfolk, N.) Reed, Laurance (Bolton, E.)
Cockeram, Eric James, David Roberts, Michael (Cardiff, N.)
Cooke, Robert Jenkin, Patrick (Woodford) Scott, Nicholas
Coombs, Derek Jopling, Michael Sharples, Richard
Corfield, Rt. Hn. Frederick Kellett-Bowman, Mrs. Elaine Shaw, Michael (Sc'b'gh & Whitby)
Crouch, David King, Evelyn (Dorset, S.) Shelton, William (Clapham)
Crowder, F. P. King, Tom (Bridgwater) Skeet, T. H. H.
Dean, Paul Kinsey, J. R. Smith, Dudley (W'wick & L'mington)
Deedes Rt. Hn. W. F. Knight, Mrs. Jill Soref, Harold
Dixon, Piers Knox, David Speed, Keith
du Cann, Rt. Hn. Edward Lamont, Norman Spence, John
Dykes, Hugh Lane, David Stanbrook, Ivor
Eden, Sir John Legge-Bourke, Sir Harry Stewart-Smith, Geoffrey (Belper)
Elliot, Cap). Walter (Carshalton) Le Marchant, Spencer Stoddart-Scott, Col. Sir M.
Elliott, R. W. (N'C'tle-upon-Tyne. N.) Longden, Sir Gilbert Stuttaford, Dr. Tom
Eyre, Reginald Loveridge, John Sutcliffe, John
Farr, John McCrindle, R. A. Taylor,Edward M.(G'gow,Cathcart)
Fell, Anthony McLaren, Martin Taylor, Frank (Moss Side)
Fenner, Mrs. Peggy McNair-Wilson, Michael Tebbit, Norman
Fidler, Michael Maddan, Martin Thompson, Sir Richard (Croydon, S.)
Fisher, Nigel (Surbiton) Madel, David Tilney, John
Fletcher-Cooke, Charles Mather, Carol Trew, Peter
Fortescue, Tim Maudling, Rt. Hn. Reginald Tugendhat, Christopher
Fowler, Norman Mawby, Ray Turton, Rt. Hn. Sir Robin
Fox, Marcus Maxwell-Hyslop, R. J. Vaughan, Dr. Gerard
Gardner, Edward Miscampbell, Norman Ward, Dame Irene
Gibson-Watt, David Mitchell, Lt. Col. C.(Aberdeenshire, W) Weatherill, Bernard
Goodhart, Philip Mitchell, David (Basingstoke) White, Roger (Gravesend)
Goodhew, Victor Moate, Roger Wiggin, Jerry
Gower, Raymond Monks, Mrs. Connie Wilkinson, John
Green, Alan Monro, Hector Winterton, Nicholas
Grylls, Michael Montgomery, Fergus Wolrige-Gordon, Patrick
Gummer, J. Selwyn Morgan-Giles, Rear-Adm. Worsley, Marcus
Hall, Miss Joan (Keighley) Morrison, Charles Wylie, Rt. Hn. N. R.
Hall, John (Wycombe) Mudd, David Younger, Hn. George
Hannam, John (Exeter) Murton, Oscar
Haselhurst, Alan Neave, Airey TELLERS FOR THE NOES:
Havers, Michael Noble, Rt. Hn. Michael Mr. Hamish Grey and
Hawkins, Paul Normanton, Tom Mr. John Stradling Thomas.
Hayhoe. Barney Onslow, Cranley

Question accordingly negatived.

Further consideration of the Bill, as amended, adjourned.—[Mr. Maudling.]

Bill, as amended (in the Standing Committee), to be further considered this day.

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