HC Deb 03 August 1976 vol 916 cc1488-538
Dr. Summerskill

I beg to move Amendment No. 3, in page 15, line 26 after 'this', insert 'Part of this'.

The need for this minor drafting amendment arises from the division of Schedule 1 into parts, by amendments accepted in Committee. Paragraph 5 of Part I provides, in effect, that the presumption in favour of the grant of bail to persons accused or convicted of offences punishable with imprisonment shall not apply where there has been insufficient time to obtain the information which the court needs in order to take the various decisions required by the other provisions in Part I.

The reference in paragraph 5, as drafted, to "this schedule" would have the effect of applying this criterion to the whole of Schedule 1, thereby allowing a remand in custody on these grounds of a person charged with an offence not punishable with imprisonment. The Government did not intend this, and the amendment is designed to avoid such an interpretation.

Amendment agreed to.

Mr. Robert Kilroy-Silk (Ormskirk)

I beg to move Amendment No. 4, in page 15, line 33, leave out paragraph 7.

Mr. Deputy Speaker

With this we may discuss the following amendments: No. 5, in page 15, line 38, leave out paragraph 8.

No. 6, in page 15, line 39, after 'court', insert 'after hearing the evidence of a probation officer thereon'.

Mr. Kilroy-Silk

Amendment No. 4 would prevent the presumption of bail in cases of remand for inquiries or reports from being overridden because a court has decided to impose a prison sentence unless induced not to do so by the inquiries or the report.

In 1974, the Advisory Council on the Penal System produced a thorough and detailed report on young adult offenders. The distinguished council had 19 members and was chaired by the late Sir Kenneth Younger. In considering remands in custody, it devoted a considerable amount of time to remands in custody for psychiatric reports, which was understandable, as one of its members was the distinguished forensic scientist, Dr. Peter Scott. The council concluded: We do not consider that the need for a psychiatric report justifies a remand in custody when bail would otherwise be granted. In other words, if a report is required and a court believes that, if given bail, a convicted person would probably abscond, commit a further offence, or interfere with the course of justice, or that he needs to be detained to protect him from the vengeance of private citizens, by all means let him be remanded in custody. However, if none of those considerations applies, a remand in custody for reports amounts to sending a person to prison in order that he should see a doctor—which he could equally well do as an out-patient.

It is absurd to remand a person in custody simply to see a psychiatrist. As Professor Gibbens, of the Institute of Psychiatry, has repeatedly pointed out, the conditions of prison society restrict the value of psychiatric observation. Anyone with any idea of prison conditions, or who can imagine them, will readily admit that prisons are not the proper or appropriate place in which to conduct any kind of medical, social or, least of all, psychiatric assessment of an offender.

The Bill recognises the advisory council's recommendations only up to a point. It provides for the presumption of bail if an adjournment is necessary for the purposes of inquiries or reports, subject to the exceptions that I have already mentioned, but it makes two further exceptions which the advisory council did not advocate and which would lessen the value of the presumption of bail considerably.

Amendment No. 4 would delete the exception of a court which has decided to impose a prison sentence unless induced not to do so by the content of the inquiries or reports. I hope that the Under-Secretary is in a more charitable and magnanimous mood than was her hon. Friend the Minister of State in Committee.

The principal reason for opposing these powers of custody is that they are not necessary. If there is no probability of a person absconding, committing a further offence, or obstructing the course of justice, and if it is not necessary to remand him in custody for his own protection, it cannot be necessary to imprison him unless and until he is sentenced to imprisonment for the substantive offence with which he is charged. To put him in prison when there is no practical necessity for doing so, purely on the ground that a prison sentence is likely to be imposed, is based on the notion that he should begin his sentence before it is imposed by the court. That is a highly dubious proposition, to say the least.

The whole point of making reports and inquiries is to determine whether a prison sentence is appropriate, yet in the Bill we are allowing the court to override the presumption of bail because it believes, in the absence of inquiries and reports, that it will pass a sentence of imprisonment on a defendant.

6.0 p.m.

There is one further very important problem connected with such an exception. It would differ from all other reasons for refusing bail, in that in practice it would be extremely difficult, if not impossible, to appeal successfully against it to a judge in chambers, who could really then challenge what was in the mind of the court when it refused bail. The amendment would, therefore, delete an undesirable exception to the very desirable general presumption that a person who had not been sentenced to imprisonment should be kept out of prison.

Amendment No. 5 would prevent the presumption of bail in cases of remands for inquiries or reports from being overridden because it appears to the court that it would be impracticable to complete the inquiries or obtain the report without keeping the defendant in custody. As the Bill stands, it provides for a presumption that bail will be granted where an adjournment is necessary for the purposes of inquiries or reports. Rightly, it makes 'this subject to certain well-defined and well-established exceptions—where the court, again, believes that the defendant, if given bail, will abscond, will commit further offences, and so on or, again, if he needs to be remanded in custody for his own protection. To that extent the Bill is in line with one of the recommendations of the advisory council.

However, as I said, the Bill makes two further exceptions to this presumption of bail, which the report did not advocate and which would lessen the value of the presumption of bail considerably, and which to a large extent vitiate the principle—the very valuable principle, which is supported by both sides of the House—that underlies the Bill. This amendment would delete the second of those exceptions—where it appears to the court that it would be impracticable to complete the inquiries or to obtain the report without keeping the defendant in custody.

To make an exception to the presumption of bail where it appears to the court that it would otherwise be impracticable to obtain a report could drive a coach and horses through the presumption. The impracticability of obtaining reports has been accepted for far too long as a reason for refusing bail and as a reason for remanding in custody. The advisory council considered this issue again very carefully. It found that There seems to be no shortage of psychiatrists willing to undertake assessments on bail. We understood that courts sometimes complained that psychiatrists outside the prison service take longer to prepare their reports, but in other respects they appear well satisfied with reports prepared on bail. That report was published over two years ago. Since then there have been a number of developments that make it even less likely that it should prove impracticable to arrange a report whilst a person is remanded on bail. For example, the Home Office circular of October 1975, on bail procedures, observed then that the Home Office Working Party on Bail Procedures in Magistrates' Courts had noted that in some areas the probation service maintained a list of doctors and psychiatrists who are prepared to do court work and expressed the view…that every court should have such a list available to it, in order to ensure that the fullest use is made of existing facilities. The Secretary of State asks that, where no such arrangement now exists the clerk to the justices should consult the local health authorities with a view to compiling such a list and keeping it up to date. There would seem to be no reason for not remanding persons on bail because of the impracticability of obtaining reports. We have, therefore, not only the Advisory Council on the Penal System in support of the amendment, but the Home Office circular itself. The excuse of impracticability has been put to the test over the last few years, since the Home Office set up, for example, out-patient facilities at Holloway, Brixton, Risley, and Durham prisons and at which offenders on bail could be psychiatrically examined by prison doctors.

Although these facilities were initially established in response to complaints from the courts about the difficulty of getting offenders on bail examined at local hospitals, it seems that they have been grossly under-used since they were first set up. At Holloway, for instance, in 1974 over 1,000 women were remanded in custody for medical reports, yet only 28 of those women were referred to the out-patient department in the same year. Similarly, 3,000 offenders were remanded to Brixton Prison for reports in 1974, but only 120 of those were sent to the prison's out-patient clinic. Yet in the Bill we have, in a sense, the temerity to talk of the impracticability of receiving reports of this kind when the facilities that are available are for one reason or another not used to their full extent.

When these facts are brought to the notice of the courts concerned, particularly those in the London area, which are responsible for a disproportionately high number of custodial medical remands, the courts now say that local hospital out-patient facilities adequately meet the needs of offenders on bail. The report of the work of the Prison Department in 1974 stated that Comments from the London courts indicated that, in general, they found the facilities at local hospitals were adequate for nearly all those who fulfilled their criteria for bail. We have the Advisory Council, the Home Office circular and the Home Office Prison Department all saying that the paragraph that I am seeking to delete from the Bill is in any event unnecessary. Therefore, not only is the impracticability of obtaining reports on bail exploded by the advisory council in its report on young adult offenders; experience since has underlined the validity of the point made in that report.

I therefore urge my hon. Friend the Uunder-Secretary to think very seriously on this issue before she replies to what I hope will be a debate on these amendments. I urge her genuinely to consider whether it is not still possible, even at this late stage, to accept certainly Amendment No. 5 but also Amendment No. 4, and to strengthen the Bill accordingly, not only to make sure that the principle of presumption of bail is applied—and applied particularly to those who are least able to defend themselves and are most in need of this kind of protection—but so that we shall not feel it necessary to rewrite the Bill in the next Session. We have an opportunity to make an important contribution towards progressive penal reform. I hope that my hon. Friend will grasp that opportunity vigorously this evening.

Mr. Mark Carlisle (Runcorn)

I support the hon. Member for Ormskirk (Mr. Kilroy-Silk) on these amendments. As the Under Secretary will see, my name appears on the first two of the amendments to which the hon. Gentleman has spoken. When I put down these amendments, I did so not knowing that the hon. Gentleman had already done the same. To an extent I did so as a probing exercise, particularly with regard to inquiring what the word "impracticable" meant in these circumstances. However, while I am interested in hearing what the hon. Lady says in reply to the debate, I should need a considerable amount of persuading that Amendment No. 4 is not an amendment that the House should attempt to make to the Bill at this stage.

As I understand the position and the schedule, the whole purpose of the Bill is to make bail more likely to be granted by providing a presumption of bail which the courts shall allow other than in the circumstances set out in the schedule—namely, the obvious circumstances that the person may fail to surrender to custody, may commit another offence or may interfere with witnesses.

The whole idea behind the Bill was the concern which has been expressed on both sides of the House over several years that the number of people in prison who have not been convicted or sentenced is alarmingly high. They are the people who live in the worst crowded conditions of all, which impose considerable strains both on the individuals themselves and on the staff. To the extent that the Bill will help in reducing this number, I support it.

Of course there must be some exceptions, but the exception in paragraph 7 of Schedule 1 seems to go to the root of the provision of a presumption of bail and, if seriously interpreted would remove that presumption entirely. What circumstances does the Home Office envisage when it talks about the adjournment of a case for the purpose of inquiries or reports? I take it that we are talking about those who have already been convicted of the offence when the court is deciding what to do about them.

If we are talking about probation or social inquiry reports, the purpose there is to decide whether someone should be sent to prison. I think that social inquiry reports are usually available before the trial or before sentence. When a report is not available, the only purpose of adjourning to get a report is that it is a necessary prerequisite to sending to prison someone who has not been to prison before.

It therefore follows that if the court is deciding what to do with someone who has been convicted, it would adjourn to get a report only if it was certainly of the mind to send him to prison. If not, it would not bother to adjourn to get a social inquiry report: there would be no point.

The clause says that bail need not be granted in these circumstances if the court has decided to impose a sentence of imprisonment but is induced not to do so by the matters disclosed by the inquiry. In 99 cases out of 100, that is bound to be the position. There is no point in getting a report when the court is minded to send the offender to prison unless there is something in the report which persuades it not to do so.

The court is therefore left in the impossible position of distinguishing between remanding with the intention of getting social inquiry reports when it is minded to send someone to prison and yet still being able to be induced not to imprison him by what is disclosed by the reports. That seems a totally artificial distinction.

The effect of paragraph 7 is that, when a court remands for inquiries before someone is imprisoned, the presumption of bail will not apply because the court has decided to imprison. This drives a coach and horses through the rest of Schedule 1 and is totally contrary to the purpose of the schedule.

Of course, it may be argued that in many cases a court may say "We shall send this man to prison. We must get an inquiry report first, but we will not grant bail because it is so clear to him that he will go to prison that there is a strong likelihood that he will not surrender to his bail." But that is covered already by paragraph 2.

6.15 p.m.

Mr. Neville Sandelson (Hayes and Harlington)

I am impressed by the logic of the hon. and learned Gentleman's argument about this paragraph and expect to be impressed by his arguments on the other paragraph. But although paragraph 7 does not suggest that the term of imprisonment may be affected by reports—particularly social inquiry reports—does not the hon. and learned Gentleman agree that there are circumstances in which a court is minded to send an offender to prison but is uncertain what the sentence should be until it has obtained such reports? I concede that there is no suggestion to that effect in the paragraph, but it is a situation which should be considered. I shall be interested in what the hon and learned Gentleman has to say.

Mr. Carlisle

Of course the court may want reports to help it to assess the length of sentence, but, with respect, that does not answer the point of my argument. If the court thinks that the person is unlikely to turn up for sentence, it can already refuse him bail under the provision about failing to surrender. If the court has decided to send him to prison but has not decided on the length of sentence and thinks that a report would help—and also thinks that he will turn up—if there is to be a general presumption of bail it should apply in that case as well, and those inquiries should be able to be made while he is out on bail.

The value of a social inquiry is much greater in the circumstances in which the offender lives than in the artificial circumstances of prison, with the family interviewed separately. At the moment therefore, I am minded to support the hon. Member if he presses the amendment.

I support everything that the hon. Member said about the other type of report, which presumably is a medical report. Surely we want to encourage medical reports being obtained outside prisons. I am depressed by the figures that the hon. Member quoted, from a recent circular which we both received, showing how little used are out-patient facilities in prison. They were provided in 1971 in a deliberate effort to get psychiatric reports outside prison rather than inside, meeting the argument that psychiatric reports could not be obtained unless the person was in custody.

In the case of Amendment No. 5, what do the Government mean by the provision that it may be "impracticable" to complete inquiries without keeping a defendant in custody? I can see the necessity for some provision when the only way in which reports can be obtained is if the person is in custody, but the word "impracticable" seems rather wide and could he used as a reason for refusing bail in any case. I hope that more use will be made of prison out-patient facilities in obtaining psychiatric reports.

Coming back to Amendment No. 4, it may be argued that one of the circumstances in which a report might be wanted and in which it is right to keep someone in custody when the court has decided, subject to the contents of the report, to send him to prison might be the question of a medical report and that the report might help the court to decide between a hospital or custody. The offender might be clearly unsafe to be let out, but it is a question whether he should go to prison or be remanded to Broad-moor. That is adequately covered by the words of paragraph 3, which says that a person can always be kept in custody when necessary for his own welfare. Therefore, I can see no object in paragraph 7, unless it is to defeat the whole principle of the schedule. I hope that the Home Office may think again.

Mr. David Weitzman (Hackney, North and Stoke Newington)

I agree with what the hon. and learned Member for Runcorn (Mr. Carlisle) said about the width of the word "impracticable" in paragraph 8. I am only sorry that we did not notice it in Committee, because something should have been done about it then. I failed in my duty. Subject to that, however, I can appreciate the need for paragraph 8.

There is considerable force in what my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) said in moving his amendment to delete paragraph 7. We start with the presumption that in the ordinary way a person should be given bail, subject to the exceptions set out in paragraph 2. Paragraph 7 deals with the situation in which the court has decided to impose a sentence of imprisonment unless it is induced not to do so by the matters disclosed by the inquiries or contained in the report". What does that mean? The court has not sentenced the defendant. It has merely decided to do so. As a result of a report, the court may well decide not to impose a sentence of imprisonment but to make a probation order. In those circumstances, is it right that the defendant should not be granted bail and that the presumption should be removed? After all, he may not be subject to any of the exceptions in paragraph 2.

Therefore, there is great force in my hon. Friend's argument. It does not seem to me that paragraph 7 is right to say that a person should not be granted bail unless the court is induced not to do so by the matters disclosed by the inquiries or contained in the report. I support my hon. Friend's argument about that.

Mr. Edward Lyons (Bradford, West)

I support my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) and the hon. and learned Member for Runcorn (Mr. Carlisle). There is confusion in the courts. They seem to take the view that they should not only consider whether bail should be granted in accordance with the normal criteria but should assume the role of medical experts and decide the circumstances in which the examination of the defendant should take place. That is a confusion of function. The courts should restrict themselves to the ordinary bail criteria and leave it to the doctor who is to examine the patient to decide whether he or she needs to use out-patient facilities or in-patient facilities.

Because a person who is remanded for psychiatric examination after conviction knows that there is often a chance of not being sent to prison, he is normally very anxious to co-operate. If a psychiatrist said "It seems to me that I need to examine you in hospital", the patient would almost certainly agree. If he did not, there are other avenues that the doctor could use to ensure that the patient could be seen inside a hospital.

Most medical remands occur in magistrates' courts. Magistrates and their clerks seem to remain blissfully unaware of the existence of out-patient facilities. Consequently, unless they are prevented from doing it they will continue without too much inquiry—on the basis of erroneous assumptions that out-patient facilities do not exist—to send thousands of people a year to prisons which are already overcrowded, so that they may be medically examined. It is a contradiction in terms that people one thinks to be sick and to need medical treatment should be sent to a prison.

Furthermore, doctors have made it clear many times that they prefer to see people in their natural habitat. If they are seen in prison, they have already been told what to say by old lags who will often give them the wrong advice. Therefore, it is advisable that as far as possible people should be examined outside rather than inside, and that magistrates should no longer seek the rôle of medical men. I am a recorder. If one sees someone who looks pretty strange, one has a temptation to set oneself up as an amateur doctor. But it is a temptation to be resisted.

Those who sit in a judicial capacity are told very little about out-patient facilities. Until I went into the matter for the purposes of the Bill, I did not know of their existence. I say that to my shame. If the higher courts do not know, what do the magistrates and their clerks know about out-patient facilities? There is ample evidence that, at any rate in London, there are out-patient facilities which are being dramatically under-used.

Therefore, it seems to me that those who support Amendments Nos. 4 and 5 have a point. My Amendment No. 6 is less far-reaching, not because I do not support Amendments Nos. 4 and 5 but because my experience of the Government is that their normal answer is "No". Therefore, I have tabled an amendment the implications of which are less wide. It suggests that before a person is deprived of bail on the grounds of impracticability the advice of a probation officer should be sought. Probation officers will be much more alive to the existence of out-patient facilities than the court or its clerk will be.

The Government should not feel very bad about accepting the amendment, if they will not accept the main amendments which involve leaving out paragraphs. My amendment would mean that no magistrate or judge could send a person to prison merely for medical examination without hearing a probation officer, who would presumably be aware of the availability or otherwise of out-patient treatment. It may be that in certain parts of the country there are no out-patient facilities. Too often we tend simply to look at London. If the probation officer, having made due inquiries, says that there are no such facilities, the judge will at least have some ground for proceeding further.

At present there is no test laid down in paragraph 8 as to how the judge should interpret "impracticable". The paragraph says if it appears to the court that it would be impracticable", but nowhere does it say what criteria the court should adopt before coming to the conclusion that it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody. That is a great fault of the paragraph.

In 1974, 12,500 people were remanded in custody by magistrates for medical reports. I believe that only 12 per cent. were given psychiatric disposals at the end. Most of these people do not have to be sent to a mental hospital.

These are matters to be considered. I ask the Government to accept the amendments. I hope that they have been impressed by the unanimity shown by lawyers on both sides of the House. When lawyers want reform, everyone knows that the case must be good.

6.30 p.m.

Mr. William Wilson (Coventry, South-East)

I shall not get involved in the argument whether magistrates are more knowledgeable than those who sit in the High Court. I was surprised that my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) confessed his ignorance of out-patient facilities.

I hope that the Minister will accept Amendment No. 4, which would delete paragraph 7. We all accept that the word "impracticable" in paragraph 8 is an unhappy choice. Subsequent reports may be required, but speaking from many years' experience, I hope that my hon. Friend will agree to the deletion of paragraph 7. Although I am unhappy about "impracticable", I am content otherwise with paragraph 8.

Mr. Ivan Lawrence (Burton)

I am not sure that I am unanimous with my lawyer colleagues. I can see strong reasons why the amendments should not be accepted by the Government. My support for the Government will probably make them agree to the amendments, and that will be a cause for rejoicing in the camp of those who put them forward.

I am moved by the strength of the arguments which have been advanced by speakers on both sides of the House, particularly those in favour of the deletion of paragraph 8. Nevertheless, as long as paragraph 7 remains in the schedule, power is given to the court to remand a first offender in custody. It may well be that few first offenders should receive a sentence of imprisonment, but there will be cases where the offence committed is so severe that it is appropriate that a prison sentence should be imposed even upon a first offender. The effect of the amendment is to require the granting of bail in all circumstances where a report has to be received before the sentencing of a first offender. That is not a desirable fetter to place upon the hands of the judiciary.

Section 14 of the Criminal Justice Act 1972 places no restriction, qualification or limitation upon the requirement that there must be no other method than imprisonment of dealing with a first offender before he is sentenced. The requirement is that the court shall not pass sentence of imprisonment, however serious the offence, on a person who has attained the age of 21 if he is a first offender unless the court has satisfied itself that there is no other appropriate method of dealing with him.

It is always right that proper and due consideration should be given to the sentencing of all offenders. Particularly is that a most anxious question when dealing with a first offender. It may be that most judges will want to consider carefully, even where it might reasonably be thought that a sentence of imprisonment was the only solution, whether there was some other way out. That way out could be discovered only by putting off the sentence until reports were available. In those circumstances, it is a wholly unnecessary gesture of magnanimity to an offender, who may almost certainly in the end have to go to prison, that the judiciary should be fettered by the amendment, which would oblige the offender to be released on bail.

Mr. Kilroy-Silk

The hon. Gentleman is making a great meal of this. If he feels that the amendment, which deletes an exception in a Bill which gives a presumption of bail, is such a fettering of the judiciary, I presume that he is against the whole Bill and the principles enshrined in it. The Bill says that there shall be a presumption of bail. Paragraph 7 makes an exception for cases where the judiciary has a mind to pass a sentence of imprisonment subject to inquiries and report. All the evidence is that the vast majority of those who are subject to psychiatric and medical reports do not in the end receive a prison sentence.

Mr. Lawrence

In those circumstances, the words— need not be granted bail would be exercised in favour of the first offender who was about to be sentenced. It does not necessarily follow if the paragraph is retained that bail will be refused for all such persons. The courts do not operate in that way.

The hon. Gentleman is right. I am not happy about the Bill. I do not wish to repeat the arguments—I am sure he has done me the courtesy of reading them—which I advanced in the Second Reading debate. Accepting that it is desirable that there should be a presumption of bail according to the terms of the Bill, I see no reason for saying that there should not be this exception to the presumption of bail.

The amendment would place a fetter upon a judge who was almost certain in his mind that it was in the public interest, and in the interest of the offender, that the offender should in due course go to prison even though every possible attempt should be made to avoid his doing so. If the judge felt himself forced to say "I think the offence is so heinous that I shall not even call for reports because I can see here and now, without ever considering the situation, that there is no question of this man not going to prison", in such circumstances would that not be an undesirable step for this House to take?

The cause which hon. Members on both sides of the House pursue—for the maximum degree of acceptable civil liberties—would probably not be served if judges were rushed into taking a decision as final as taking away the liberty of the subject by a period of imprisonment when one very last opportunity might possibly be found to base an argument on the reports for not doing so.

Mr. W. R. Rees-Davies (Thanet West)

One of the points which have been overlooked is that paragraph 7 does not require the court in public to state its decision to impose a sentence of imprisonment. Therefore, paragraph 7 as it stands can enable a court to keep a person in custody without stating that it had decided to impose a sentence of imprisonment. Would not my hon. Friend agree that the paragraph should at least be amended if it is to contain the power that he maintains it should contain?

Mr. Lawrence

With great respect to my hon. and learned Friend, with whose opinions on this and many other matters I usually agree—and even when I do not I have great respect for his view—I am not sure that what he says would be the most sensible course. Presumably, it would mean that the court would have to say "We have decided to send you to prison unless we have a change of heart as a result of any further reports." I am not sure that that would be an improvement in the law.

Mr. William Wilson

Is it not a fact that already the court may say to a man "We are thinking of sending you to prison, but you have to have legal representation before we finally decide"? The point that the hon. Gentleman is making already arises when the court indicates the decision to send the offender to prison but it gives him a further opportunity to take legal advice. There is nothing new in it.

Mr. Lawrence

I am not suggesting that there is. Perhaps I gave a rather bad reply to my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies). I meant that I could see no advantage in writing that into the Bill. It is said on many occasions anyway, and where it is not said I am not sure that there would be any great advantage in requiring it to be said, because, for example, it might cause unnecessary alarm or despondency among members of the accused person's family.

Another matter arises out of the amendment to paragraph 7 which has been referred to by my hon. and learned Friend the Member for Runcorn (Mr. Carlisle). He spoke of the assumption that a prison sentence was intended and there really was not a great deal of point in pretending otherwise. But, of course, a sentence of imprisonment does not necessarily mean an effective sentence of imprisonment.

6.45 p.m.

A sentence of imprisonment might in due course be imposed but be suspended. It might be suspended because, by the time the judge received the report, he might be persuaded that a suspended sentence with a supervision order under Section 12 of the 1972 Act might be appropriate. Therefore, it does not necessarily follow that a judge has to say either that there will be a prison sentence or that there will not be a prison sentence. The judge may say "There ought to be a prison sentence, but I must await the reports to see whether there is anything in them which will enable me to suspend that sentence, with a supervision order."

That is a further refinement with regard to sentencing. It is a further complication, which seems to me undesirable, that a judge would not only be fettered but would be pushed, as it were, over the line at which he might just save somebody from going to prison by keeping him in custody while reflecting upon the reports.

Finally, I am not sure that everybody would agree with hon. Members who have suggested that it is better for a probation officer to make a social inquiry report in the home. It is, of course, important that the social inquiry officer should see the home and the person's background and know something of the circumstances which would apply if a man were not sent to prison. Equally, a rapport can be achieved between the social inquiry officer and the prisoner if the inquiry is removed from the home background and from the influence of the wife, children and family. A degree of honesty and openness can perhaps be achieved which I am not sure by any means is always disadvantageous to the full benefit of a social inquiry report.

I am not saying that it is undesirable that a probation report should be taken in the home. What I am saying is that, equally, it is not as black and white as some hon. Members have said and that it might not be undesirable for probation reports to be taken when the person concerned is in custody. It is an open question, and it is much more complicated than it appears, and in my view there are good reasons why paragraph 7 should remain part of the Bill.

As I said when I started, I am less happy about the meaning of paragraph 8 and I tend to support the criticisms of it levied by my hon. Friends, in particular, by my hon. and learned Friend the Member for Runcorn.

Mr. Edward Lyons

I believe that the hon. Gentleman is labouring under a misapprehension. The reference is not to a probation officer visiting the home of a defendant but, where possible, to a psychiatrist seeing the patient in his home circumstances.

Mr. Lawrence

I can correct the hon. and learned Gentleman. I am not labouring under any misapprehension. The point that I make about the probation officer applies equally to psychiatrists, in my experience.

Mr. Rees-Davies

I shall be brief, but I admit that I find these two amendments by no means easy. First, with regard to paragraph (8), I agree entirely with what my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) had to say about the word "impracticable". Presumably this is intended to deal with medical cases. I ask that as a question. Is it entirely intended to deal with the occasion when a case is adjourned for inquiries or report and the court finds that, by reason of the defendant's medical condition or something of that kind, it is not possible for the inquiries to be made and the report completed without keeping the defendant in custody? Would not some such words as "with all reasonable effort it is not possible to complete the inquiries" be better than "impracticable"? As it stands, I find paragraph 8 confusing and I am not sure that it is necessary.

The case must be rare when one needs to keep somebody in custody purely by reason of medical matters. I suppose that one could instance as a class of case that of an alcoholic who was refusing to have any kind of medical examination. In such circumstances, it might be said to be impracticable to complete the inquiries or that one could not do it with all reasonable effort.

It is a pity that we are coming to this matter so late and, as I understand it, we cannot make an amendment, the matter having been to the other place for full consideration and having had careful consideration also in the Standing Committee. I shall be interested to hear what my hon. and learned Friend the Member for South Fylde (Mr. Gardner) has to say about paragraph 8 in the light of what has so far been said, and I look forward also to hearing the hon. Lady the Under-Secretary of State. I have a fairly open mind, but I am unhappy about paragraph 8 as it stands for the reasons already given.

I am unhappy about paragraph 7 for a different reason. I should like the court to have power to keep a defendant in custody where it had definitely decided to impose a sentence of imprisonment in the ordinary way but where nevertheless it wanted inquiries for a report—almost certainly of a medical nature, or perhaps of a psychiatric nature from an appropriate probation officer. In such circumstances, having in due course seen the psychiatric report or the report of the medical officers concerned, the court might then change its view and decide not to impose the sentence of imprisonment which it had originally in mind.

I do not trust paragraph 7. It does not impose upon the court any duty to inform the accused or the public that that is the decision which it has made in the inner processes of its thought. Regrettably, this paragraph could therefore be a charter for the sort of member of the judiciary—magistrate or otherwise, as the case may be—who wishes to keep somebody in prison but does not want to disclose the reasons.

On that ground, I am opposed to paragraph 7 as it stands. If it were suitably amended I should be in favour of it, provided that the matters to which I have referred were clarified. All my hon. Friends and hon. Members opposite who are familiar with these matters know that judges not infrequently indicate an intention to pass a sentence of imprisonment but they wish to avoid doing so if it would cause harm as a result of the mental disorder or psychiatric condition of the person concerned.

There used to be many such cases in the application of the law relating to homosexual offences. In such cases the courts clearly would impose a sentence of imprisonment, and would say so, but sometimes, having heard a psychiatrist who undertook to take a homosexual patient into a home or hospital to undergo treatment for a substantial period, and subject also to a condition of residence, they were willing not to impose a sentence of imprisonment.

For the reasons I have indicated, I find paragraph 7 as it stands unacceptable unless the hon. Lady or my hon. Friends are able to persuade me otherwise.

Dr. Summerskill

I have listened carefully to the informed legal opinion expressed from both sides of the House on these three amendments, and I shall deal first with Amendments Nos. 4 and 5. These amendments would remove from Part I of Schedule 1 the power of a court to refuse bail when adjourning a case after the defendant's conviction but before passing sentence in the two situations which we are considering.

Both the paragraphs which the amendments are designed to remove were added to the Bill in Committee without a Division. They formed part of Government amendments moved in accordance with undertakings given in another place to restrict the grounds on which bail could be refused to persons remanded after conviction but before sentence. They were thought necessary because otherwise the court would be obliged to release a defendant even if it were virtually certain that the defendant would receive a custodial sentence or if there were no real possibility of the report or inquiries being completed within a reasonable time if the defendant were not in prison. The Magistrates' Association in particular strongly urged the Government that these two situations needed to be covered.

Paragraph 7 follows the recommendation in paragraph 148 of the report of the Working Party on Bail Procedures in Magistrates' Courts. It is aimed at avoiding a requirement being placed on magistrates to release a defendant on bail even though it is virtually certain that he will subsequently receive a custodial sentence. Admittedly, it is true that where the magistrates have formed the intention, subject to what the report may say, of passing a custodial sentence, and where this is already apparent to the defendant, the likelihood of his absconding will be substantially increased. Bail could accordingly be refused on this ground. Moreover, under paragraph 10(a) of Part I, one of the factors that the court is required to take into account when taking the bail decision is the probable method of dealing with the defendant for the offence.

The Government's view until now was that it was more straightforward to include a specific provision that bail need not be granted in this circumstance rather than to leave it to the magistrates to use the more complex argument of the likelihood of absconding. However, having listened carefully to what hon. Members have said—the majority apparently wishing to see paragraph 7 deleted—in deference to the views of the House I am prepared to accept Amendment No. 4.

I should add a word with regard to what was said by the hon. and learned Member for Runcorn (Mr. Carlisle). Would he not agree—this is a rhetorical question—that it must be remembered that many reports are asked for when it is not obligatory to have a report? For instance, the defence may want one as a last hope that it will find some mitigating circumstance, and it may actually succeed in that object. If in such a case the magistrates cannot remand in custody, they can refuse to adjourn for a report at all, and if this is their only choice they may well do that, so that the amendment could well be counter-productive by resulting in fewer inquiries. That is an argument in favour of retaining the paragraph.

Paragraph 8 is based on Section 18(6) of the Criminal Justice Act 1967. The supporters of the amendment attack this provision on the ground that it should always be possible to have inquiries made or reports prepared while a defendant is on bail. The Goverment agree that reports should be obtained in this way whenever possible, and recommendations to this effect were included in Home Office Circular No. 155/1975. It is usually better on medical grounds for a report of a defendant's physical or mental condition to be made elsewhere than in prison, though there are a few exceptions to which I shall come.

7.0 p.m.

Where a defendant would require observation over a period, he could be placed in a hospital if a place were available. The Committee on Mentally Abnormal Offenders, which reported in October 1975, recommended that a court should have power to make an order remanding to hospital for a report a person who appeared to be mentally disordered. This recommendation and others made by the committee, are being considered by the Government.

I accept the figures given by my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) concerning people remanded in custody for medical reports. However, it still remains true that some people cannot effectively be examined except in custody, and there are circumstances, as I shall show, in which it is impracticable to obtain a report except by remanding the defendant in custody. Admittedly these circumstances have diminished as a result of efforts made in the last few years, but they still occur and must be provided for.

First, there is the case of a defendant who cannot be relied upon to turn up for the inquiries or the report, either because he is mentally disturbed or because he is unwilling to have inquiries carried out. Secondly, there is a category of person on whom a satisfactory report can be prepared only while he is in custody. In 1973 the Prison Department, on behalf of the Working Party on Bail Procedures in Magistrates' Courts, consulted the governors and medical officers on this matter. The result was that, although such people form only part of the defendants remanded in custody—a part varying widely in different areas of the country, but a significant part—they were in general the itinerant, often mentally disordered misfits in society, perhaps verminous or displaying evidence of drug-taking or alcoholism, with no relatives or friends and unlikely to remain in one place. Those people are unlikely to turn up for reports.

Thirdly, there may be difficulties in obtaining a report in the three-week remand period. This is no longer a general prob- lem. However, out-patient facilities at hospitals for psychiatric examination are often hard pressed, particularly at holiday periods. It is sometimes impracticable, although we hope rarely, to conduct medical examinations in a particular area at a particular time.

The main argument for this provision is the first—namely, that it is impracticable to examine some individuals unless they are held in custody. I emphasise to the movers and supporters of these two amendments the words "need not" in both paragraphs. My hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman)—it might have been a slip of the tongue—referred to "should not" be granted bail. The words are "need not", and there is a court discretion in both these paragraphs. If the paragraphs were taken out, these situations would be exempted. I hope I have got that right.

Mr. Charles Fletcher-Cooke (Darwen)

The hon. Lady surely means that if, for example, paragraph 8 remained in, there would still be discretion; the refusal of bail is not obligatory.

Dr. Summerskill

I am obliged. That is exactly what I was trying to say.

Mr. Kilroy-Silk

I am glad that my hon. Friend, after giving a list of reasons why it is considered in some circumstances to be impracticable, came back to what she called her main argument which was twofold: first, that if a person was likely to abscond or, secondly, was mentally ill, he might not co-operate or turn up for the report. On the first point, a person who is likely to abscond is covered adequately already by the previous part of the schedule. Secondly, if the defendant is so mentally ill or disturbed that he is unwilling or unable to co-operate in a report, presumably he is a likely candidate for committal to a mental hospital. I cannot see that my hon. Friend has made out the argument against taking out paragraph 8.

Dr. Summerskill

I cannot accept what my hon. Friend has said. I gave a whole list of people, not only the mentally ill. A person cannot be sent to a mental hospital before having been examined, and he cannot be examined until the authorities get hold of him and have a chance to observe him. My hon. Friend has picked out one category who, he suggests, should be sent to mental hospitals anyway. I gave a whole list of a significant number of people with different conditions for whom it is essential to have this paragraph in the Bill. I repeat, the words "need not" give discretion to the magistrates.

Mr. Andrew F. Bennett (Stockport, North)

Paragraph 3 of the schedule states: The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection". Surely, that covers all the cases which have just been listed.

Dr. Summerskill

I cannot agree with that paragraph 3 covers paragraph 8. We are dealing in paragraph 8 with a whole category of people who are not covered by paragraph 3 for the reasons which I think I have clearly stated.

The intention behind Amendment No. 6 is to ensure that before remanding a convicted person in custody for inquiries or a report the magistrates will obtain evidence from a probation officer on whether a remand in custody is really necessary. I sympathise with the objective behind the amendment but I consider that it would not always be practicable. I think that this matter should be lefto to be covered by guidance in a circular rather than inserted as a mandatory requirement in the Bill. The practicability problem arises essentially from the inflexibility of an express statutory provision of this kind.

The amendment requires a court, before remanding in custody for inquiries, to hear evidence from the probation officer. Often this would be an excellent thing, in particular where the defendant was already known to the probation service and a probation officer was, therefore, able to help the court immeditely on what might best be done. However, this is not always possible. The defendant might be unknown to the probation service. Therefore, before a probation officer could give evidence he would have to interview the defendant and make inquiries. Increasingly, because of the pressures on the probation service, where a probation officer's evidence is not required ancillary workers attend court to keep the service in contact with what is going on, thus freeing probation officers for other tasks. However, an ancillary would not be qualified to conduct an interview. Where this was necessary—in Berkshire, for example—a probation officer would have to be found and taken off other work. This could be avoided only by having a probation officer on standby, which would have serious resource implications for an extremely hard-pressed service. Moreover, the forming of an opinion solely on the basis of a short interview of that kind and on information which must necessarily be largely unverified is not regarded as good professional practice. Nor is the probation service the only possible source of information. If the question is whether facilities for out-patient examination at a hospital are available, a member of the court staff could check that. It might be that the police could also help with that kind of information.

I repeat that the Government agree entirely with the objective of the amendment, which I take to be that before the remanding in custody for inquiries or a report the court should seek all available information—in particular, any information that the probation service could supply—on whether there was any practicable alternative to a custodial remand.

If the amendment is withdrawn, we undertake to emphasise all this in a circular. The amendment would introduce too much inflexibility. Therefore, I ask my hon. Friend to withdraw the amendment on the basis of the assurance I have given.

Mr. Rees-Davies

Before the hon. Lady sits down, I wonder whether she would deal with one matter and whether perhaps the Chair would indicate whether in certain circumstances a manuscript amendment would be acceptable. The short point is that the hon. Lady means pargraph 8 to mean—to use an "Alice in Wonderland" term—that the defendant need not be granted bail if it appears to the court that it is necessary to keep the defendant in custody in order to complete the inquiries or make the report. That is simplicity itself. If the court is of the opinion that to complete the inquiries it is necessary to keep a person in custody, it is clear. The word "impracticable" in this context is wrong. I agree with my hon. and learned Friend the Member for Runcorn (Mr Carlisle) on that matter.

If that is correct, and I believe it to be what the hon. Lady interpreted it to be, I wonder whether the Government might wish to move a manuscript amendment at this stage. It is very late in the day. I do not know, Mr. Deputy Speaker, whether, if the Government indicated such an intention, you would be of the opinion that it would be proper in the circumstances or whether you would take the view that it was too late. I submit that it would be proper, because it is the only opportunity that we have to deal with a matter which apparently escaped attention in Committee. If the hon. Lady felt that she could do that, it might resolve many differences on this paragraph.

Dr. Summerskill

On a point of explanation, if there is such a thing. I am advised that "impracticable" is almost as strong as "not possible". It means not possible, taking a reasonable view of what is humanly possible in the circumstances. The interpretation of the paragraph by the hon. and learned Member for Thanet, West (Mr. Rees-Davies) is reasonable. I could not agree to alter the words at this stage. I should like to retain the paragraph in the Bill. However, I shall not seek to oppose Amendment No. 4.

Mr. Edward Gardner (South Fylde)

My hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) suggested that, where a court thinks it is necessary to keep a defendant in custody in order to complete the inquiries or to make the report, the court ought to have that power. To try to withdraw that power and to restrict the court's discretion by amending paragraph 8, as is suggested, is to say that this House has no faith in the ability of a court to exercise judicial powers properly. The specific power must be given to the court in words more easily understood and less open to dispute than those used in paragraph 8, because there is no other power in the Bill which would allow the court to exercise discretion.

I join my hon. and learned Friend the Member for Thanet, West in urging on the Minister the need for redrafting, if possible, by one means or another the words set out in paragraph 8. I also join and support the criticism so lucidly and effectively made by my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) about the word "impracticable". If the Minister feels that the Government have no alternative but to let through what we consider to be a somewhat deplorable example of parliamentary drafting that this House ought to be in a position to correct, I ask for an undertaking that when the Bill eventually becomes law, the Home Office will take steps to ensure that the courts are given guidance to make clear beyond peradventure what is intended by the word "impracticable".

7.15 p.m.

Mr. Kilroy-Silk

First, I should like to express my thanks and those of my hon. Friends to my hon. Friend the Under-Secretary of State for having so well and lucidly answered the points that were made in the debate and for having accepted Amendment No. 4, which is to leave out paragraph 7.

I am sorry that my hon. Friend is unable to give way to the same kind of pressure, which has come from both sides of the House, with regard to Amendment No. 5 for the deletion, or at least the redrafting, of paragraph 8. I do not think that an undertaking that on the passing of the Bill she will give instructions to the courts on the interpretation of paragraph 8 would be sufficient. Paragraph 8, if passed, will stand and it will be for the courts to determine the interpretation that they put upon it. As many hon. Members have said, the paragraph is unnecessary in principle and it is also extremely badly drafted.

Mr. William Wilson

As one who objected to the use of the word "impracticable", I think that it would be a very serious matter if the Home Secretary were to tell the courts what interpretation to put on different words. It is a fundamental principle that the courts must make up their own minds on such matters. The word "impracticable" is included in paragraph 8 and the Home Secretary wishes it to be there.

Mr. Kilroy-Silk

rose—

Dr. Summerskill

On this point, if I may intervene in my hon. Friend's speech, I agree with my hon. Friend the Member for Coventry, South-East (Mr. Wilson) that the Government cannot tell the courts how to interpret a Bill, but they can give guidance. I assure the House that, in view of what has been said about the word "impracticable" and as it seems to disturb hon. Members, the Home Office will give guidance to the courts on the feeling of the House. I say yet again that this paragraph is discretionary. Magistrates are asked neither to grant nor to refuse bail. This paragraph simply states that a person need not be granted bail". It is entirely a matter for the magistrates to decide one way or the other.

Mr. Lawrence

On a point of order, Mr. Deputy Speaker. I think that it would be of assistance to the House if you would be kind enough to give us your guidance on the point raised by my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies), who asked whether it might be possible, even at this late stage, for the House to accept a manuscript amendment. If that were possible, it would be eminently desirable. There does not seem to be any sensible reason for the House producing a form of rubbish which will subsequently necessitate guidance being given to the courts. Surely it would be better to correct this wording today, which by common agreement is at fault, with a form of words acceptable to the House as gathered in the Chamber. I respectfully ask for your guidance, Mr. Deputy Speaker, on whether it is possible at this stage to submit a manuscript amendment.

Mr. Deputy Speaker (Sir Myer Galpern)

If the Minister in charge of the Bill wishes to prepare or hand in a manuscript amendment to paragraph 8 for my consideration, I shall consider it. If it is in order, I shall be prepared to accept it.

Mr. Kilroy-Silk

It seems that my hon. Friend the Under-Secretary of State is unwilling to accept a manuscript amend-

ment. I am sorry that she has not been able to accept all the comments that have been made on the amendment to delete paragraph 8. It is not good enough to say that the House will not have a say in the matter but that the Secretary of State for the Home Department will draft recommendations for the courts on how they should interpret the law.

We are supposed to be legislating. It should not be necessary for the Home Secretary to tell us to be good boys and not to mess up what is already a mess. Surely he should not say that and then draft a nice letter to the courts to tell them what we really meant to say in the Bill when we were supposed to be writing it. For that reason, if for no other, I shall press the matter to a Division. I hope that I shall be supported by my hon. Friends and by Opposition Members.

Mrs. Audrey Wise (Coventry, South-West)

I ask my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) to appeal to the Under-Secretary of State to accept the suggestion of a manuscript amendment. She acknowledged that the suggested wording is better although she would not accept it. That is an untenable position. I ask my hon. Friend to make one last appeal to the Under-Secretary of State to accept the amendment.

Mr. Kilroy-Silk

Will it help my hon. Friend the Under-Secretary of State if I remain on my feet? Are we likely to get any further if I do so? Will my hon. Friend, even at this late stage—no; I think we should put the matter to a Division.

Amendment agreed to.

Amendment proposed: No. 5, in page 15, line 38, leave out paragraph 8.—[Mr. Kilroy-Silk.]

Question put, That the amendment be made:—

The House divided: Ayes 53, Noes 102.

Division No. 310] AYES [7.13 p.m.
Allaun, Frank Colquhoun, Ms Maureen Fox, Marcus
Atkinson, Norman Cook, Robin F. (Edin C) Hart, Rt Hon Judith
Beith, A. J. Corbett, Robin Heffer, Eric S.
Bidwell, Sydney Cryer, Bob Jenkins, Hugh (Putney)
Brown, Ronald (Hackney S) Dunwoody, Mrs Gwyneth Kerr, Russell
Buchan, Norman Edge, Geoff Kilroy-Silk, Robert
Callaghan, Jim (Middlelon & P) Edwards, Robert (Wolv SE) Kinnock, Neil
Carmichael, Neil Flannery, Martin Litterick, Tom
Loyden, Eddle Panhaligon, David Steel, David (Roxburgh)
Lyons, Edward (Bradford W) Perry, Ernest Taylor, Mrs Ann (Bolton W)
McDonald, Dr Oonagh Price, C. (Lewisham W) Thomas, Ron (Bristol NW)
Madden, Max Rodgers, George (Chorley) Thorne, Stan (Preston South)
Maynard, Miss Joan Rooker, J. W. Whitehead, Phillip
Mikardo, Ian Roper, John Wilson, William (Coventry SE)
Miller, Dr M. S. (E Kilbride) Ross, Stephen (Isle of Wight) Wise, Mrs Audrey
Miller, Mrs Millie (Ilford N) Shaw, Arnold (Ilford South)
Newens, Stanley Skinner, Dennis TELLERS FOR THE AYES:
Parry, Robert Smith, Cyril (Rochdale) Miss Jo Richardson and
Pavitt, Laurie Spearing, Nigel Mr. Andrew Bennett.
NOES
Anderson, Donald Gow, Ian (Eastbourne) Price, William (Rugby)
Armstrong, Ernest Graham, Ted Rees-Davies, W. R.
Ashton, Joe Grant, John (Islington C) Robinson, Geoffrey
Bagier, Gordon A. T. Hamilton, James (Bothwell) Shore, Rt Hon Peter
Barnett, Guy (Greenwich) Hamilton, W. W. (Central Fife) Silkin, Rt Hon John (Deptford)
Bates, All Harper, Joseph Silkin, Rt Hon S. C. (Dulwich)
Blenkinsop, Arthur Harrison, Walter (Wakefield) Sims, Roger
Boyden, James (Bish Auck) Hatton, Frank Small, William
Brotherton, Michael Howell, Rt Hon Denis (B'ham, Sm H) Stallard, A. W.
Brown, Hugh D. (Provan) Huckfield, Les Strang, Gavin
Buchanan, Richard Jackson, Miss Margaret (Lincoln) Summerskill, Hon Dr Shirley
Cant, R. B. Jessel, Toby Tinn, James
Cartwright, John Johnson, James (Hull West) Tuck, Raphael
Cocks, Michael (Bristol S) Jones, Barry (East Flint) van Straubenzee, W. R.
Cohen, Stanley Jones, Dan (Burnley) Varley, Rt Hon Eric G.
Cox, Thomas (Tooting) Kaufman, Gerald Vaughan, Dr Gerard
Crowther, Stan (Rotherham) Lawrence, Ivan Wainwright, Edwin (Dearne V)
Dalyell, Tam Lipton, Marcus Walker, Harold (Doncaster)
Davidson, Arthur MacFarquhar, Roderick Walker, Terry (Kingswood)
Dempsey, James MacKenzie, Gregor Watkins, David
Dodsworth, Geoffrey McNamara, Kevin Watkinson, John
Dormand, J. D. Marks, Kenneth Weatherill, Bernard
Duffy, A. E. P. Marshall, Dr Edmund (Goole) Wellbeloved, James
Dykes, Hugh Marshall, Jim (Leicester S) White, Frank R. (Bury)
Ellis, John (Brigg & Scun) Millan, Bruce Whitelaw, Rt Hon William
Ennals, David Miller, Hal (Bromsgrove) Williams, Alan (Swansea W)
Evans, loan (Aberdare) Morris, Alfred (Wythenshawe) Wilson, Alexander (Hamilton)
Farr, John Morris, Charles R. (Openshaw) Wilson, Rt Hon Sir Harold (Huyton)
Fletcher-Cooke, Charles Mulley, Rt Hon Frederick Winterton, Nicholas
Foot, Rt Hon Michael Ogden, Eric Woodall, Alec
Ford, Ben Page, Rt Hon R. Graham (Crosby) Young, David (Bolton E)
Forrester, John Park, George
Fowler, Gerald (The Wrekin) Parker, John TELLERS FOR THE NOES:
Freud, Clement Peart, Rt Hon Fred Mr. David Stoddart and
Gardner, Edward (S Fylde) Pendry, Tom Mr. Donald Coleman.
Golding, John

Question accordingly negatived.

Mr. Kilroy-Silk

I beg to move Amendment No. 7, in page 17, line 2, leave out paragraph 2.

Mr. Deputy Speaker

With this we may take the following amendments: No. 8, in page 17, line 10, at end insert: '(c) the court is satisfied that it is probable that the defendant, if released on bail might interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person'. No. 9, in page 17, line 11, leave out paragraph 3.

Mr. Kilroy-Silk

This amendment would mean that the prohibition on remanding in custody those charged with non-imprisonable offences would not be subject to an exception on the ground that the defendant had previously absconded and therefore, in the court's view, would probably do so again. I emphasise that the amendment would not prevent the court from remanding someone in custody if he had absconded following a grant of bail in proceedings for the present offence—but it would prevent a court from remanding in custody someone charged with a non-imprisonable offence on the ground that he had absconded in proceedings for another offence at some time in the past.

The Advisory Council on the Penal System, in its report on young adult offenders in 1974 said, in paragraph 450: We are strongly of the opinion that it should not be possible to detain a young adult in custody in such circumstances, and recommend that the law should be amended accordingly. That recommendation is just as valid in regard to all defendants. The balance involved in bail decisions between, on the one hand, the protection of individual liberties and, on the other, the need to protect the public, must be resolved in favour of individual civil liberties if society considers the offence to be so minor and trivial that in no circumstances can those who have been found guilty be sent to prison. It is difficult to see why an exception should be made to cover the likelihood of absconding if it is not made to cover, for example, the likelihood of further offences or of interfering with witnesses.

To single out the possibility of absconding in this way is to give it undue importance. Indeed, the Home Office Research Unit's Frances Simon and Mollie Weatheritt found, in their research into bail matters, that in the 1969 sample 6.7 per cent. of defendants bailed by magistrates failed to appear in court when required to do so. That is a relatively low figure. It is reasonable to assume that the incentive to abscond is greatly lessened when no custodial sentence is Possible for the offence, and that in such cases even lower rates of absconding can be expected. Therefore, it seems totally unnecessary to make an exception to the general presumption of bail.

Lord Hailsham, during the Bill's Committee stage in another place, said, on 6th April: I think we are talking a great deal too much about absconding…If the offence with which a man is charged is one involving violence, or a very serious offence, it is that and not absconding, nowadays in modern society, of which you ought to be afraid. In the old days, in the 18th century, before there was a proper police system, when there were no means of tracing people, no social security, no means of finding out a man's employer and so on, I dare say that absconding was a very real difficulty…But nowadays the problem is to stop offences of an unacceptable kind being committed while the man is out on bail."—[Official Report, House of Lords, 6th April 1976; Vol. 369, cc. 1551–2.] I commend those comments to the House. I hope that the Minister will be as open-minded and as charitable on this amendment as on previous amendments.

I turn to Amendment No. 9. That would mean that the Bill's general prohibition on remanding in custody those charged with non-imprisonable offences would not be subject to an exception on the ground that it is necessary to keep the defendant in custody for his own protection or welfare—an exception which is currently contained in the Bill. To make such an exception would be contrary to the recommendations of the Advisory Council on the Penal System in its report, which recommended an absolute prohibition on remanding in custody those charged with non-imprisonable offences.

The situations which are envisaged in this exception presumably relate to defendants who are mentally unbalanced or have suicidal tendencies, since the likelihood of vengeance by private citizens—which can certainly occur in the case of serious crimes involving sex or violence—is unlikely to arise in the case of a minor offence not punishable by imprisonment.

I cannot see that an offence which does not carry the penalty of imprisonment can be one for which the defendant needs to be protected generally from the public, otherwise the offence presumably would be of such a serious nature that it would require imprisonment. It does not seem to cover that possibility.

In regard to mentally disturbed or unbalanced persons, the Bill runs completely counter to the recommendations in the report of the Butler Committee on Mentally Abnormal Offenders, which considered that minor offenders who are mentally disordered should be admitted to psychiatric units within the National Health Service, thereby averting the need to bring them within the penal system. Indeed, the report stated that Their treatment needs could often be met by the National Health Service, and many of them could suitably be admitted directly into psychiatric hospitals, or into other psychiatric units, by the machinery of Section 136. Section 136 is the section of the Mental Health Act 1959 that empowers a constable to remove to a place of safety a person found in a place to which the public have access, who appears to the constable to be suffering from mental disorder and to be in immediate need of care or control, or, if he thinks it necessary to do so, in the interests of that person or for the protection of other persons.

If, however, such an offender is charged with a non-imprisonable offence, appears before a court, and the court considers that a remand is necessary, a remand on bail to hospital as an in-patient is likely to be far more efficacious and appropriate, and far more beneficial, than would be a remand in custody. Indeed, putting a mentally disordered, mentally unbalanced, person into prison seems to me to be the worst possible thing to do for him. It is rather anomalous that in this Bill we should be talking about the need for his protection and welfare. I cannot see that it is conducive to a person's welfare to be committed to a penal institution. The Butler Committee commented that Remand to prison may be unhelpful, in view of the limited facilities of certain persons for dealing with the generality of psychiatric cases, and even undesirable, for example, where the offence in question is not itself punishable by imprisonment on conviction, or a prison sentence is unlikely to be imposed. With regard to a defendant's suicidal tendencies, as the Minister well knows, suicides are not unknown—indeed, they are not uncommon—in prison. I should have thought that incarceration in some of our overcrowded prisons would be more conducive to suicidal tendencies than in any way a protection of those who have that propensity.

We are in a situation in which my hon. Friend may suggest that it may be necessary for their protection and welfare, and to deal with their suicidal tendencies, to remand such persons in custody, whereas the only possible likely result of that is to exacerbate and exaggerate such tendencies. I should have thought that remand on bail to a hospital as an inpatient would be far more appropriate in such circumstances. Remand on bail to a hostel may be appropriate in some cases—as, for example, with alcoholics—if the Secretary of State for Social Services were to provide a few more such centres, but certainly remand to a prison is clearly inappropriate.

The amendment would therefore delete what I believe is a very undesirable exception to the general proposition that it is inappropriate to remand any person in custody when the substantive offence of which that person has been charged in any way carries a penalty of non-imprisonment.

7.45 p.m.

I urge my hon. Friend to accept the amendment rather than to maintain a provision in the Bill which runs counter to the recommendations both of the Advisory Council on the Penal System, which I hope she holds in high regard, the Younger Report, and the report of the Butler Committee on Mentally Abnormal Offenders, which she has already quoted in her defence in answer to an earlier amendment.

The amendment is supported by the National Association for the Care and Rehabilitation of Offenders, which is a very respectable and very forthright body in this field. It is also supported by the Howard League for Penal Reform and by the National Council for Civil Liberties.

I hope that my hon. Friend will remove these two exceptions, which, if they are left, will to a very large extent remain as a blight on what is otherwise a very useful and welcome Bill.

Mr. Carlisle

I speak briefly in support of Amendment No. 7. We are, I feel, involved in a slight nonsense here. We are dealing specifically with non-imprisonable offences, and I agree in principle with what the hon. Member for Ormskirk (Mr. Kilroy-Silk) said. In principle it seems wrong to detain a person in custody for offences which are alleged against him and for which, if he is convicted, he cannot be sent to prison as a penalty.

The hon. Gentleman has spoken lucidly. I wish to add only that the Bill makes it for the first time an offence to break bail or to abscond while on bail. There is, therefore, even less reason for the clause.

Let us suppose that a person is charged with a non-imprisonable offence and is granted bail. If he does not turn up, he commits the offence of absconding while on bail, so that he can be dealt with under the provisions of this Bill in any case. If I understand the Bill correctly, if a person fails to surrender to custody, he can then be arrested without warrant by a constable or arrested on a warrant by order of the court. He can then, as I understand it, be held in custody.

I concede that if a person is charged with a serious offence, there is a valid argument that there is reason to think that on this occasion he will not surrender, but the fact that on previous occasions a person may have failed to surrender to bail seems to me to be a bad argument in itself for justifying his detention in custody for an offence for which in any event he cannot be sent to prison, and when he can be dealt with anyway, under the other provisions of the Bill.

Although I do not agree with what the hon. Gentleman said about Amendment No. 9, I support him strongly on Amendment No. 7.

Mr. Sims

I hope the Government will resist Amendments Nos. 7 and 9, because in my view the exceptions here are perfectly justified. If someone has previously failed to surrender to bail, the court should have the right to withhold bail, regardless of the nature of the offence.

It is perfectly true, as my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) says, that the Bill creates the offence of absconding from bail, so that if a person fails to turn up he can be charged with an offence—if he is caught, but it seems rather absurd to suggest that if a court has before it someone whose record suggests that it is likely that he will not turn up at the court for the hearing, nevertheless the court should still be obliged to release him on bail. On those grounds, I hope that paragraph 2 will remain in the Bill, and that the amendment will be resisted.

Similarly, with regard to Amendment No. 9, I should have thought, particularly in respect of children and young persons, that anyone with any experience of juvenile court work would realise that the appearance of a juvenile before a court on what may be a very trivial offence may be simply the tip of the iceberg. There may be a far more serious story behind it, and there may be circumstances that would more than justify that child's being kept in custody for its own welfare. Some relatively petty offence may well be the psychological cry for help which that child is making, and therefore it should be kept in some form of custody.

Amendment No. 8 has my name on it, and it raises a point that was not dealt with adequately in Committee. The critera for refusing bail are laid down in Part I of Schedule I in respect of imprisonable offences, but Part II of the same schedule lays down different criteria for non-imprisonable offences. The hon. Member for Ormskirk (Mr. Kilroy-Silk) wants to remove this altogether and say that in no circumstances should bail be refused for non-imprisonable offences. I believe that the court should have the power to withhold bail not only in the circumstances laid down but also where there is a possibility that the defendant may interfere with witnesses.

This is one of the criteria laid down in Part I in regard to imprisonable offences, but it is not laid down in Part II. I think it is logical that it should be included in Part II as well. If a man appears before a court charged with an offence that is non-imprisonable, and if the police know from his record that there is a likelihood that he will interfere with witnesses, as the Bill stands they cannot oppose bail. Surely, in the interests of the public and of justice, the court should withhold bail in such circumstances.

Mr. Lawrence

Again I support the Government, which means that the case is probably lost, to the joy of the hon. Member for Ormskirk (Mr. Kilroy-Silk) and my hon. and learned Friend the Member for Runcorn (Mr. Carlisle).

I am bound to say that a distinction has to be drawn between the process of sentence and the process of trial. A necessary prerequisite of any criminal proceedings is that the accused should appear to take his trial. It is no use making it easier for someone to run away or abscond and then to shrug one's shoulders and send the police out to arrest him for the criminal offence we have created in the Bill. It makes a nonsense of the whole process of criminal trial if we cannot ensure that an accused person appears to take his trial.

If the accused can reasonably satisfy the court that there is no question of his absconding he will be granted bail. That will occur in 99 cases out of 100, but what happens if there is before the court clear evidence adduced though the fact that on previous occasions the accused has, knowing the restraints upon him and that sureties will lose money in default, nevertheless flouted the requirement to appear? When that evidence is put before a magistrate or a judge, should not the court be able to say that this is a well-known absconder who should not be granted bail? Or will it be unable to do so? The police may seek and apprehend a man after a great deal of time and energy and bring him to court charged with a non-imprisonable offence. If it is known that he is likely to abscond will the court still have to grant him bail and say that he may now go?

What sort of incentive is that for the forces of law and order to carry out their tasks with a reasonable degree of belief that what they are doing is beneficial to society? It is absolute nonsense for us to make it difficult in that small number of cases to bring a person to book.

It is all very well creating another offence in this Bill, but we must remember that the police have to catch the man. Their resources are not adequate to enable them to catch every Tom, Dick and Harry accused of a non-imprisonable, not too serious offence. They have not the resources to run around all over England in order to bring such a man before the court. I think it is nonsense to try to take away the power to refuse bail in these circumstances. One must presume that the courts will act with a fair degree of reasonableness and will take every care in such circumstances.

One factor which, of course, must be considered is the impact of hardship caused. If, in this sort of situation, a man is remanded in custody there will be enormous pressure on the legal system to try him speedily and most of the cases which come before the magistrates' courts and which are not imprisonable offences will be dealt with quickly. The period of time in which such a defendant is remanded in custody is likely to be short.

The hon. Member for Ormskirk cited Lord Hailsham as supporting his proposition, but if one refers to the debate in the House of Lords on this Bill one will see that he has misdirected the meaning. Lord Hailsham was referring to a completely different matter when he suggested that it is no longer sensible to use the old artifice of saying that a man should not have bail for a serious crime because he would be likely to abscond. Lord Hailsham was suggesting that there should be certain specific offences set out, and for persons charged with those offences bail should not be granted. His point was that the artifice should go. It had nothing to do with this sort of situation we are discussing. In fact, Lord Hailsham would be astonished to hear the hon. Member for Ormskirk citing him in support of his proposition.

Therefore I would ask the House to reject Amendment No. 7. I am not sure that I see the necessity for two subparagraphs, (a) and (b), in any event, because if the court were satisfied that there would be a failure to surrender to bail it is obvious that the defendant probably would abscond. However, that is not a matter of great importance.

8.0 p.m.

As for Amendment No. 9, there are situations where it would be in the interest of the accused person for his own protection that he should be kept in custody. It is a very harsh action to keep anybody in custody, and it is sometimes cause for suspicion for a person to be kept in custody when the police say that it is for his own protection, but, as those of us who have practised for many years in the courts know, there are occasions when it is highly undesirable that persons should be allowed releases, particularly if they are young, and the matter should be disposed of with all speed.

I support the amendment in the name of my hon. Friend the Member for Chislehurst (Mr. Sims). It is likely in some cases, even though imprisonment is not the end result, that people will not want to be convicted, perhaps for all sorts of reasons, but if there is the possibility in a particular case that the trial will be impeded if the defendant is not held in custody, it does not seem to me to make any difference whether the offence is an imprisonable one or not.

Mr. Bruce Douglas-Mann (Mitcham and Morden)

What the hon. Member is suggesting would create great scope for giving imprisonment for non-imprisonable offences. His experience must tell him, as mine tells me, that there are a number of cases where the police feel that the sentence of the court will be inadequate, and, therefore, seek to oppose bail on that very ground. This happens to a certain extent already, and the incorporation of the amendment would leave enormous scope for serious abuse.

Mr. Lawrence

I would not in any way seek to negative the hon. Member's point. In the past there has been great concern that objections to bail could be too readily used by police officers who were not too anxious to obey the spirit of the rules. I take the hon. Member's point, but we must weigh up the advantages and the disadvantages, and I believe that it is far more important that there should be trials—not because of my professional interest in the matter, I can assure hon. Members—than that there should be a mockery, either with people absconding because the courts are forced to give them bail, or with witnesses being interfered with. On that score, the police officer will have to give precise evidence to the court. If he said that he thought there would be interference, and there was no basis for his suspicion, the court would not act upon it. If there were firm evidence, the law would be an ass to ignore the situation if it would be likely to lead to an improper trial. I believe that the practicalities far outweigh the strong argument advanced by the hon. Member for Mitcham and Morden (Mr. Douglas-Mann).

I do not think much of the Bill because I do not think that it will make a great deal of difference in practice. In practice, there will be no obligation to remand in custody for any of the reasons set out in paragraph 2 or in the amendment in the name of my hon. Friend the Member for Chislehurst. Therefore, there would have to be a reasonably strong case to satisfy the magistrates or the judge that a a threat existed. That happens now, and it should continue, because it is far more important for the maintenance of justice that people should be tried than that they should be encouraged to interfere with witnesses and to impede the processes which will bring them either to conviction or acquittal.

Mr. Edward Lyons

I was in some doubt about paragraph 2 until I heard the hon. Member for Burton (Mr. Lawrence). Now I am quite satisfied that my proper course is to support the amendment moved by my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) and the argument advanced by the hon. and learned Member for Runcorn (Mr. Carlisle). The prisons are already overcrowded, and we must try to keep people out of them. We are dealing with a clause that relates only to cases in which imprisonment cannot be the sentence of the court. That means that we are deal- ing with a class of offence that is normaally of a less serious nature. If we have to put people into custody pending trial we should try to see that there is a limit on the time that such persons spend in custody. After all, ultimately they can only be fined, given a conditional discharge or given probation.

The courts are overcrowded. Policemen involved in a case may be on holiday. As a result, someone in this sort of situation, although charged with an offence which in itself cannot merit imprisonment, may find himself in custody for a considerable period. He may find himself in prison with people who may have a very bad effect upon him—they may be experienced criminals. The very fact that the charge is of a less serious kind could mean that the accused has not been much in trouble with the police in the past.

Mr. Edward Gardner

The paragraph in question clearly relates to people who have been in trouble before.

Mr. Lyons

I have dealt with that point already. I said not that they had not been in trouble before but that they had not been much in trouble before. A person could have been in trouble before for another non-imprisonable offence, but that would not make him a fit companion for other people in prison who have committed serious offences.

Mr. Lawrence

The hon. and learned Gentleman is saying that someone who has hardly been in trouble at all may be made to suffer in company with a number of hardened criminals. Does he not accept that it is highly unlikely that someone who has not been in very much trouble before would fall within any of the provisions of this part of the Bill, or of the amendment of my hon. Friend the Member for Chislehurst (Mr. Sims)? They must be people who have been in custody before, who have failed to appear for bail when having been in trouble before, or who are likely to interfere with witnesses. The picture that the hon. and learned Gentleman paints, of a poor person who has hardly been before the courts at all surely does not fit in with those requirements?

Mr. Lyons

I hesitate to argue with the hon. Member for Burton, but I do not agree with his interpretation. Such a person does not have to have been in custody before, except in the sense of having surrendered to bail for the purpose of a previous hearing, which may have been for a non-custodial offence. That is the only pre-condition in paragraph 2.

I appreciate that these provisions are designed to remove inconvenience for the courts so that they are not kept waiting, but we must measure against that the fact that people who cannot be sent to prison for an offence may still have to spend a substantial time in prison.

Another powerful point is that in Clause 6 we are introducing, in effect, the offence of absconding, which can bring three months' imprisonment if the case is heard in a magistrates' court or 12 months' imprisonment on committal. That means that anyone who fails to attend court for a parking or other noncustodial offence puts himself into a different category in future. He can be charged with this new offence, which is punishable by imprisonment. If he is such a pest to the police, as was envisaged by the hon. Member for Burton, they will be delighted, because he will have removed himself from a fineable offence into the realms of an offence punishable by up to 12 months' imprisonment.

If a man has been burgling houses and the police have been able to catch him for only minor offences, he will be at their mercy on the new charge if he absconds.

This part of the Bill presumes that the person concerned is not very good at absconding. He has to have been caught in order for there to have been a previous occasion when he was granted bail and failed to surrender to custody. That is a significant factor.

We cannot know what the results of this new offence will be. People on minor charges who may have been disposed not to surrender to bail in the past, or not turn up at court for parking or careless driving charges, may now face three months' imprisonment, which will teach them a lesson. From now on, a person who does not turn up at court renders himself liable to the new charge.

Not all absconders disappear for ever. Often they have quarrelled with their wives and want to visit them on the day the court is sitting. They may decide to keep the court waiting for a day or two. They are often found later, and frequently surrender themselves.

8.15 p.m.

We have now introduced the new offence, which can result in imprisonment, and consequently we should look at paragraph 2 with a different eye. I fall in line behind the amendment.

In paragraph 3 a distinction is made between the adult defendant and the child or young person. A child or young person need not be granted bail if his own welfare is at risk, but an adult, even if his welfare is at risk, apparently must be granted bail. I am thinking of a person who commits a non-custodial offence just before Christmas for the purpose of getting into prison over the Christmas holiday. That may surprise some hon. Members, but it does happen, and some people also try to get into prison during a particularly nasty period of the winter.

These people, because they are no longer children or young persons, cannot be put in prison for a night or two. It is sad that they are driven to these actions and curious that a defendant in such a situation cannot be put in prison for his own welfare.

Mr. Douglas-Mann

My hon. and learned Friend the Member for Bradford, West (Mr. Lyons) made most of the points that I wished to make. I endorse what he said about paragraph 3. I am dissatisfied with the distinction between adults being remanded in custody for their own protection and children being remanded for their own welfare.

It is preferable to keep paragraph 3, but there are circumstances in which it is desirable that someone should be remanded in custody not only for his own protection but for his own welfare. I am thinking particularly of alcoholics and drug addicts, who badly need to be kept out of circulation for a while so that they have the opportunity to "dry out", even when they are not charged with an imprisonable offence.

I share much of the spirit with which my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) approaches the Bill, but I cannot agree with him on Amendment No. 9.

I ask the Minister to consider whether it would not he more appropriate to make both provisions in paragraph 3 a matter of welfare rather than protection, because there can be cases, as I know from personal experience, in which it is desirable that defendants should not be granted bail. If instructed to apply for bail, a solicitor has little alternative but to do so. However, in those circumstances the courts would be better equipped if they had the slightly wider power that has been suggested.

As for paragraph 2, I entirely agree with the view that it is quite wrong to put someone in prison for a non-imprisonable offence even if he has previously absconded in relation to a quite different set of circumstances. If one has practised in the courts, one must know that there are occasions on which—this particularly applies at first instance in magistrates' courts—the zeal of the arresting officer is such that he is very reluctant to see the person whom he has arrested walking out of court. Even if he knows that the defendant will not get a custodial sentence in the end, he feels a great deal happier if the defendant is remanded in custody.

It is not necessarily a matter of great odium for the police. They may feel a degree of moral outrage at the offence and be infuriated that the magistrates' court will impose only a £25 fine. If they have grounds for opposing bail, it is not uncommon for them to do so even in many cases in which it is not appropriate.

Given the new imprisonable offence of absconding from bail, it is not desirable that we should extend the powers of the court to refuse bail in these circumstances by having paragraph 2 in the Bill, let alone adding to its provisions as suggested by the hon. Member for Chislehurst (Mr. Sims).

In my intervention during the speech of the hon. Member for Burton (Mr. Lawrence), I made clear my objection that there is too much scope for abuse. On the face of it paragraph 2 sounds reasonable, but we must bear in mind that we are dealing with a non-imprisonable offence and that by leaving the paragraph in we shall be creating situations in which people are sent to prison for nonimprisonable offences on the basis of representations made to the court by a party who feels aggrieved at what this House has done in the way of a maximum penalty.

Mr. Edward Lyons

Earlier I mentioned careless driving, but it has just occurred to me that careless driving is an imprisonable offence. Would it not be better if the Government gave some indication of these non-imprisonable offences? I think that most would be found to be offences under the food and drugs legislation, by people such as retailers, rather than offences by people who might be regarded as criminals in the regular sense of that word.

Mr. Douglas-Mann

Indeed. That is a very valid point. Even if we are dealing with someone who has been in prison and who has, on a serious charge, absconded from bail and who then comes up on a careless driving charge, or something less serious, and wishes to contest it, we should immediately have the situation envisaged by paragraph 2. It would be absurd to keep him in prison pending his trial in those circumstances.

I hope that the Government will reconsider the desirability of including paragraph 2. I certainly hope that my hon. Friends and Opposition Members will oppose the amendment, which would widen the scope for someone to be kept in jail unnecessarily pending his trial, because of opposition by the police.

Mr. Edward Gardner

I agree entirely with what was said by the hon. Member for Mitcham and Morden (Mr. Douglas-Mann) about the undesirability of, and the strongest possible objection to, keeping someone in prison in lieu of prison as a punishment. Indeed, there was a very famous Lord Chief Justice of England who, in 1898, pointed out during a case dealing with bail that bail was not to be withheld as a punishment. I thoroughly endorse that view which, put forward as long ago as 1898, has been repeated during this debate.

However, what we are looking at is this paragraph 2, which deals with people who have had experience of the courts previously, who have abused the rights that the courts have allowed them previously and who, by their behaviour, now leave the court satisfied that, if they were allowed their freedom and were admitted to bail, they would repeat their previous behaviour. I think that it is right that this House, as I have submitted previously, should be willing to have sufficient confidence in the courts to exercise a discretion in cases of this kind. It would be against the interests of justice and against the public interest if a court were to be deprived of its discretion to say "The person now before us, although likely to fail to appear at his trial, must now be allowed to leave the court, although we shall probably never see him again and great public expense will be involved in tracing him, because we have no power to order otherwise."

I am entirely in agreement with the views put forward about paragraph 3. This seems to be a valuable provision, and valuable for the reasons that were adduced by the hon. Member for Mitcham and Morden. For those reasons, putting it as briefly as possible, we intend to support the Government in rejecting Amendments Nos. 7 and 9.

We ask the Government to look favourably at Amendment No. 8. It adds to the provisions under paragraph 2, which, I have already submitted, are valuable. If a court were to be satisfied that it would be probable that a defendant would interfere with the course of justice by getting in touch with witnesses or otherwise obstructing the course of justice, it would be right that the court should have a discretion of exercising a power of refusing that person admission to bail. For that reason I ask the Minister to accept this amendment as it has been drafted.

8.30 p.m.

Dr. Summerskill

I have listened again carefully to the views, not always unanimous, of legal opinion on these two paragraphs. I would first of all like to speak on Amendment No. 7, to delete paragraph 2, which provides that a defendant accused or convicted of an offence not punishable with imprisonment need not—I emphasise again the phrase "need not"—be granted bail. The paragraph simply gives magistrates power not to grant bail; they are given discretion in criminal proceedings when someone has failed to surrender and the court must be satisfied that in view of a previous failure he will probably fail to surrender again.

The provision is therefore aimed at defendants who have failed to surrender in previous criminal proceedings. Its purpose is to avoid leaving the court virtually powerless to deal with people who fail to appear. Even though the offence itself may not be grave, the defendant may cause serious inconvenience to witnesses and waste the time of the prosecutor and the court by failing to appear at the time and place specified.

Although the Government accepted that a person charged with an offence not punishable with imprisonment should rarely be remanded in custody, they considered that where there was a strong possibility, demonstrated by past conduct, of a defendant defying the court's authority, a remand in custody would be justified. But each case would be considered on its merits by the magistrates.

Some defendants—fortunately a minority—deliberately defy the court by constantly failing to turn up. Others—I turn now to paragraph 3—are visibly in some danger to themselves. They may be suicidal or mentally unbalanced, or, in the case of a child, in moral danger. The provisions in Part II of the Schedule were introduced to limit the grounds on which a court should be able to remand in custody a person charged with or convicted of an offence not punishable by imprisonment, because some sanction must be kept to deal with the case of people of the two types that I have just instanced—those who persistently fail to turn up and the second category, about whom my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) put a reasonable case.

My hon. Friend's argument was that this provision for a custodial remand was not appropriate and should not be available when a defendant cannot be sent to prison for the offence charged. However, the Working Party on Bail Procedures in Magistrates' Courts took a different view, observing that remands in custody for the defendant's own safety are sometimes justified and that the power should be retained for such cases as the person with known suicidal tendencies or the person who is likely to be exposed to intimidation or violence if released on bail.

The validity of those arguments does not depend on the seriousness of the offence charged, but I believe that the deletion of paragraph 3 would seriously weaken the courts' powers in a small but nevertheless important number of cases, possibly to the detriment of the people concerned. It would be hard to support the proposition that where the court concluded that a defendant was likely to be at serious risk, whether through his own actions or those of others, it would nevertheless have to release him on bail.

This paragraph gives the court discretion. It need not grant bail; on the other hand, it can grant bail. A safeguard against abuse of the powers to remand in custody is provided by the requirement imposed on courts to give their reasons for refusing bail. A copy of their reasons will be available to a defendant who wishes to challenge the decision in a higher court.

Mr. Kilroy-Silk

Dealing with paragraph 2, my hon. Friend talked about the offender who persistently absconded, and said that the court had to have some power. She even talked as if the defendant should be penalised for the inconvenience that the court had been put to. But surely that power exists now in the Bill. We have created the new offence of absconding. That will deal with the persistent absconder. Surely we do not need to imprison someone charged with a non-imprisonable offence in those circumstances. As my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) said, he is caught by the new offence.

My hon. Friend's second point related to mentally disturbed offenders, and she cited in her support the Home Office Working Party on Bail Procedures in Magistrates' Courts. But are not the Advisory Council on the Penal System and the Butler Committee on Mentally Abnormal Offenders far more distinguished committees and far more pertinent to this point than the working party? Both argued strenuously against remands on these grounds.

Dr. Summerskill

We are discussing whether the defendant need be granted bail. That is not covered by the new offence that my hon. Friend mentioned. We are talking about exceptions to the right to bail. Here are some situations in which the defendant need not be granted bail. I can understand that there are genuine differences of view among the lawyers. I am not denying that some reputable organisations support my hon. Friend's amendments; I am simply stating the powerful arguments for retaining the paragraphs—arguments that have some support in the House. I concede that there are persuasive arguments for and against retaining the paragraphs.

Mr. Douglas-Mann

Will my hon. Friend say a word about the suggestion made my my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) and myself that there are circumstances in which it may be desirable to refuse bail, in the interests of the dependant's welfare as well as his protection?

Dr. Summerskill

I concede that "welfare" and "protection" could have opposite meanings or the same meaning. I do not know whether my hon. Friend is suggesting that we insert "welfare" instead of "protection". At present the paragraph has "protection" in the second line and "welfare" in the third line. I do not think that it is possible to alter the wording at this stage.

Mr. Fletcher-Cooke

The hon. Lady must accept that the words must mean two different things, as they are in the same sentence. If they meant the same, the draftsman would not have used two different words.

Dr. Summerskill

I think that the hon. and learned Gentleman is right. "Protection" refers to adults, who can be put in prison, whereas a child or young person is put in the benevolent care of the local authority for his own welfare.

The effect of Amendment No. 8 would be that a court could remand in custody a person accused or convicted of an offence which was not punishable with imprisonment, if the court thought it probable that the defendant would interfere with witnesses or otherwise obstruct the course of justice if he were granted bail.

Part II of the schedule was inserted in Committee by Government amendments moved following representations made in another place that the circumstances in which it should be possible for a court to remand in custody a person who, if found guilty, could not be sentenced to imprisonment should be reduced to an absolute minimum. Part II provides that these circumstances should be limited to the following situations: first, where, in view of a previous failure to answer to his bail, the court concludes that the defendant will probably fail to do so again if granted bail; secondly, where the court is satisfied that the defendant should be kept in custody for his own protcetion or welfare; thirdly, where he is already serving a sentence of imprisonment; and, fourthly, where he has been arrested earlier in the same proceedings for breach of his bail obligations.

The Government take the view that in the case of minor offences these are the only grounds on which a custodial remand might be justified. The probability of interfering with witnesses is not included, because it seems quite unnecessary. It it difficult realistically to imagine a scenario where a person charged with an offence for which he cannot be imprisoned would consider it worth while to interfere with witnesses in order to avoid a small financial penalty—and even more difficult for a court to reach the conclusion that it was probable that he would interfere with witnesses. If, however, he did so, he would be committing a separate criminal offence, for which he could be punished.

We do not consider that the amendment is necessary, and I hope on that

'52 & 53 Vict. c. 63 The Interpretation Act 1889. In section 27, the words from "and shall include" to the end'.

The amendment adds to the repeals schedule a small consequential repeal already provided for in substance by the amendment to Section 27 of the Interpretation Act 1889 contained in paragraph 5 of Schedule 2 of the Bill.

Amendment agreed to.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)

Consideration completed—

Mr. Sims

On a point of order, Mr. Deputy Speaker. I moved Amendment No. 8. I did not withdraw it, and I did not hear you put the Question to the House.

Mr. Deputy Speaker

The hon. Gentleman is under a misapprehension. The amendment was debated with Amend-

argument my hon. Friend will agree to withdraw it.

Amendment negatived.

Dr. Summerskill

I beg to move Amendment No. 10, in page 17, line 19, leave out 'subsection (1) or (2) of'.

Paragraph 5 of Part II of Schedule 1 is intended to provide that a person need not be granted bail if he has been released on bail at an earlier stage in the proceedings and has subsequently been arrested under the powers contained in Clause 7. As originally drafted, the Bill provided that an arrest could be under subsection (1) or subsection (2) of that clause. A further power of arrest, by warrant, now embodied in subsection (3) was added in Committee to cover the case in which a person absents himself from the court after having surrendered into the custody of the court. Accordingly, paragraph 5 needs to be amended to include references to all three subsections.

Amendment agreed to.

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