HC Deb 03 August 1976 vol 916 cc1538-50
Dr. Summerskill

I beg to move Amendment No. 12, in page 28, line 11, at end insert—

ment No. 7 but was not moved. It was not selected for a Division.

Motion made, and Question proposed, That the Bill be now read the Third time.—[Dr. Summerskill.]

8.43 p.m.

Mr. Edward Gardner

The Opposition welcomed the Bill when it first came before the House, although, perhaps, we did not show overweening zeal. The warmth of our welcome is not as great as it was because we believe that the Bill now seriously interferes with the discretion which was originally in a court to decide whether to refuse bail. That discretion has been seriously distorted by an amendment which the Government insisted on making when the Bill came from another place.

The presumption of innocence is the foundation of our system of criminal justice, and we accept that it is important, as the working party recommended, that a similar presumption should be created in relation to bail in favour of a defendant. We agree that it should not be for the defendant to show cause why he should be granted bail but that, rather, a court should consider whether there are good reasons why he should not be bailed.

The reasons for refusing are set out in Schedule 1. The three principal reasons are contained in paragraph 2(a), (b) and (c). We find it somewhat surprising that those reasons do not include what the working party recognised in the report as the first factor which a court ought to consider. The recommendations of the working party in this respect have been either ignored or overlooked by the Government in the Bill as we are now considering it.

The first factor which a court ought to take into account, when deciding whether to refuse the admission of a defendant to bail, according to the working party report, was the seriousness and nature of the offence. This, the working party said, should be a reason in its own right for refusing bail. One of the weaknesses of the Bill is its failure to make the seriousness and nature of the offence a reason in its own right for giving the court a discretion to refuse to admit a defendant to bail. Of course, by Schedule 1(10) the court is allowed to take into account, and shall have regard to the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it) but it does not make, as the working party report recommended the Government should make, the seriousness and the nature of the offence as a separate ground upon which bail could be refused.

Our more serious criticism, and it has been our criticism of the Bill ever since it came to this House, is that in its present form it undermines the discretion which has always been given to the courts, a discretion which the working party recognised as being highly desirable, and which the working party felt the court ought to be able to exercise. In effect, the working party said that it is highly undesirable that the discretion of the court in deciding whether or not to refuse bail should be restricted more than necessary.

The first draft of the Bill—I am now referring to the very heart of the Bill, Schedule 1(2)—made it necessary for the court to be satisfied, as this Bill in its present form makes it necessary for the court to be satisfied that it is probable that the defendant, if released on bail would do one of three things:

  1. "(a) fail to surrender to custody, or
  2. (b) commit an offence while on bail, or
  3. (c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person."
If those conditions are fulfilled, and the court is satisfied to that degree or standard of proof, then the court need not grant the defendant bail.

In fact, the word "probable", in our view, raises such a high standard of proof that the discretion that is left to the court is more illusory than real. Indeed, some have feared, and now fear again, that the use of the word "probable"—here I quote a view expressed by a member of the judiciary— seems to have been designed to give the impression that the justices retain a discretion when in fact any such discretion is being removed. It is difficult to imagine a situation in which the justices are satisfied that it is probable that the accused would fail to surrender. I imagine"— said the judge— that a change at this point would be more difficult to obtain; it certainly seems to me to create a situation in which a refusal of bail would be almost impossible. That is a view which has informed and kept alive a strong apprehension that if, as we now have it, the word "probable" is retained, with that high standard of proof, the public will be exposed to a risk from which they should be protected.

We accept, and we are anxious that it should be known that we accept, that the Bill is in other respects on the right lines, because we recognise the importance of avoiding the injustice of keeping in prison someone who has been charged with an offence but has not been convicted of that offence. We recognise also, however, and we emphasise what the working party emphasised in its report, that it is equally important that the public should be protected and feel that the Government are giving them full and proper protection.

Our concern in relation to the Bill is not so much about whether we can empty our prisons or whether we ought to build more. Our concern is to ensure that the full and uninterrupted liberty of a person who has been charged but not convicted should be compatible with the public interest, and that persons should not be let loose at large upon the public if, by so being at large, they put into jeopardy the public interest, which, in our view, demands protection from dangerous, violent and vicious criminals.

We feel strongly that there is here a defect which the Government have brought into the Bill of their own volition. They have been determined to do it. The other place voted on this issue and defeated the Government, putting into the Bill, in place of the word "probable", the words "unacceptable risk", which imported a lower standard of proof. On Second Reading I said that I was not satisfied even with those words, but at least they are preferable in every way to the word "probable".

It is worth remembering that, in displacing the words "unacceptable risk" and substituting "probable", the Government have acted against the views, and the persuasive arguments which supported them, of two former Lord Chancellors, of a Lord of Appeal in Ordinary and of a Liberal peer who is himself a distinguished lawyer.

We feel that there are dangers in this Bill because of what the Government have now done to it. Although we cannot in any way hope to deal with those dangers or remedy this defect, at least this is the moment to declare our fear that the danger is there. We hope that the result will not be appreciable or will bring any serious peril to the public. We think that the danger is there and that it can be avoided. It is a danger that makes it necessary for the Opposition to give a qualified welcome to the Bill.

8.56 p.m.

Mr. Douglas-Mann

We on the Government side of the House, share the objectives of the hon. and learned Member for South Fylde (Mr. Gardner) but we consider that those objectives are more satisfactorily achieved by the words in the Bill than the words that have emerged from the other place. I will not detain the House on the broader issues of the Bill. I was not on the Committee on the Bill.

I should like to raise one matter which was debated in Committee and which, I fear, because the Government are not able to accept it, remains a serious deficiency in the Bill. I refer to the inadequacy of legal representation at the time of application for bail, particularly if the application has to be pursued to the judge in chambers or, preferably, if a right to make the application to a Crown court were substituted for the existing provisions of the application to a judge in chambers.

I have had correspondence with the Minister of State, Home Office, about this. I received from him today a letter in which he explains why the Government do not feel that it is practicable at the moment to provide legal aid for an application for bail to a judge in chambers—or, rather, an appeal against refusal of bail—or to change the system to making an application to the Crown court.

There are 8,000 applications made each year. The procedure is that the applications are, for the most part, carried out by the Official Solicitor. The defendant is in custody. The Official Solicitor makes an application on his behalf. Only a tiny proportion of these applications made to the Official Solicitor are successful. Any lawyer with experience of this kind will know that a very substantial proportion of applications made by private legal representation are successful. It may be that there are different circumstances or cases where defendants are able to obtain someone to make the applications for bail for them and that those are the more meritorious cases. My experience—I believe it is shared by many lawyers—is that an application made to a judge in chambers by a private lawyer, is given serious consideration and that a significantly higher proportion of such applications are successful.

I do not have the particulars. The Law Society carried out a study of the number of cases of applications made to the judge in chambers. I think that only 10 per cent. of applications dealt with by the Official Solicitor were successful That is a very low percentage.

One of the reasons advanced by my hon. Friends for rejecting the proposal that legal aid should be granted was the cost. I would remind my hon. Friends of the cost of keeping someone in custody. The cost involved in providing legal representation to assert a right of liberty, if it is to be taken into account, must be weighed against the cost of keeping somebody in prison unnecessarily. It is a substantial cost which ought not to be incurred when it can be avoided.

That argument—that there are 8,000 cases a year at present—takes no account of the effect of the Bill. Many of the unnecessary refusals of bail applications will be caught by the Bill. Far from there being 8,000 cases a year in future, I trust that the numbers who find it necessary to apply to the judge in chambers will be fewer. The fact that they will be fewer does not mean that some will not have substantial merit.

It is important that we assess the cost realistically. If we do, we shall find that the balance of the cost to public funds of providing legal aid to enable people to make applications for bail either to the judge in chambers or, as I believe would be preferable, to the Crown court, will be relatively small. In any case, even if the cost were moderately substantial, I suggest that, on the issue of liberty, it is important that we make funds available to ensure that people are not kept in prison unnecessarily.

Although the Bill has deficiencies in that respect, I am on the whole extremely glad that it has been presented. I congratulate my right hon. and hon. Friends on their persistence in getting it through and in resisting the blandishments of their Lordships and of the Opposition to revert to "unacceptable risk".

9.1 p.m.

Mr. Sims

On Second Reading I expressed the view that the Bill was unnecessary because it put into statutory form the normal practice in the courts. I have since altered my view, chiefly on the grounds indicated by my hon. and learned Friend the Member for South Fylde (Mr. Gardner) regarding the manner in which the Bill has been altered in Committee.

It is clear that the deliberate aim of the Bill is to make it more difficult for the court to withhold bail. I fear that that may prove to be a retrograde step. There is little evidence that bail is unreasonably refused. Indeed, there is some evidence that it is granted too freely.

There was a case in the Midlands of three boys involved in car stealing. They appeared before the court and were bailed. They went off stealing cars again, with results which, alas, were fatal to themselves. There is no doubt about the views of the parents on how the court should have exercised its powers in that case.

A recent case reported in the Press concerned a youth who beat an old woman to death after being allowed out on bail by two courts, despite police objections. Therefore, there are times when, if anything, the courts err on the side of liberality in granting bail.

The central point of the Bill is that hitherto magistrates' courts—it must be remembered that in most cases it is the magistrates' courts that grant or withhold bail—have been able to use their common sense and discretion in deciding whether to allow bail. They are now to be restricted literally to the letter of the law. As my hon. and learned Friend said, it is yet another curb on the discretion of the courts, and it is one which I deplore.

I do not want to detain the House by going into great detail and argument on those matters; they are self-evident. I think that I have made my feelings clear. But there is another aspect to which I feel I should refer. The Bill should not be implemented until the Home Office is satisfied that it has all the facilities to put it into practice. The essential operation of the Bill will be the manner in which bail information forms are completed and presented to the courts.

I mentioned this point in Committee and was assured that it would be about six months before the Bill was implemented, by which time this matter would have been satisfactorily cleared up. I hope that that proves to be the case. However, when I asked the Minister of State how many courts in England and Wales operate a bail information scheme, and what information he had on who normally completes the forms, I received the following answer: We do not have this information at present. It is our intention to ask courts later in the year to what extent they are operating such schemes."—[Official Report, 20th July 1976; Vol. 915, c. 423.] The Bill cannot operate unless the bail information form scheme is in operation in every court. The bench will have to have the information that is required by the forms before it can take the decision that it is required to take under the Bill. It is vital that the Home Office reaches agreement with those involved on who shall complete the forms. I am sure that the hon. Lady is aware of the differences of opinion between probation officers, court clerks and police officers, for example, as to whose duty it is to complete them.

I urge upon the hon. Lady that her Department does not bring this measure into effect, even if that means deferring implementation beyond the date originally indicated in Committee, until the whole question of who should complete the information forms has been satisfactorily settled, so that the scheme can be operated smoothly from the word go.

9.7 p.m.

Mr. Kilroy-Silk

I find it somewhat extraordinary that the hon. and learned Member for South Fylde (Mr. Gardner) should talk of his fears and trepidations about the Bill on Third Reading. He had ample time in Committee to table amendments to the Government amendments. If his fears were as strong in Committee as he has made them appear tonight, it seems rather strange that they did not manifest themselves in one Opposition-forced Division.

Mr. Edward Gardner

In fact, I tabled an amendment dealing with the word "probable". I tabled an amendment on the words that the Government wished to remove, namely, "unacceptable risk". My amendment sought to retain those words. There was a Division on that amendment.

Mr. Kilroy-Silk

Tonight the hon. and learned Gentleman has been speaking not only about the unacceptable or probable risk controversy but about other matters in the Bill. Amendments were not tabled in Committee to deal with those matters. The Opposition forced no Divisions on those matters. However, in this relatively non-partisan atmosphere it ill becomes me to enjoin an attempt to arouse controversy.

This is an appropriate Bill at a time when the prison population is at an all-time high. It is about 100 short of what the Home Secretary considered would be an unacceptable and intolerable level slightly over a year ago. That has caused widespread overcrowding in our prisons, two-thirds of our prisoners being two or three to a cell. For that reason if for no other—I accept that it is not the primary reason—the Bill is welcome. It is welcome if it leads only to some alleviation of the overcrowding and to fewer people being remanded.

I welcome the Bill wholeheartedly, except for its creation of the new offence of absconding. I regret that it was found necessary to put that into the Bill in the first place. I regret that it was felt necessary today to leave in the Bill the two provisions that I attempted to delete. However, I do not think that the Bill is one that needs a qualified welcome; It is one that should be welcomed enthusiastically. It will be welcomed for whatever it does to reduce the number of otherwise unnecessary incarcerations.

I believe, or hope, that it will have a profound effect on sentencing policy. I hope that it will lead not only to fewer people being put into prison for unnecessary reasons and for unnecessary periods but to far fewer of those currently found not guilty, those who have cases against them not proceeded with, or those who are given non-custodial sentences, finding themselves refused bail.

Large numbers of schoolchildren and adults are imprisoned for relatively long periods of time, only subsequently to be found not guilty or be given non-custodial sentences or to find that their cases are dropped. That state of affairs is unnecessary. If the Bill becomes law, that situation will be mitigated to some extent and the exercise will have been worthwhile. It is a pity that the Bill did not go further and provide some element of compensation for those who are wrongly imprisoned. Many adults and schoolchildren can spend up to three months in prison before they are subsequently found to be innocent or are given a non-custodial sentence.

In view of the size of the prison population, the Bill is welcome. We are coming out of a hot summer, with all the problems of overcrowded prisons and cells, and the situation will be exacerbated by public expenditure cuts. Prison warders have worked to rule and prisoners have been locked in their cells for longer periods than are necessary. Again, therefore, if the Bill has some mitigating effect in that respect it will have been worth while.

We have been dealing in the debates with the fine balance that exists between, on the one hand, the preservation and enhancement of civil liberties and, on the other hand, the necessary protection demanded by society from those of its citizens who are violent and reckless. The Bill seeks to tread that line finely and judiciously.

I wish to congratulate the Minister of State, who is not now present, on taking the Bill through its Second Reading with such courtesy and lucidity. I also wish to thank the Under-Secretary of State for the Home Department, who acted with great charity in accepting one of my amendments. Perhaps I may say that in one sense the hon. Lady has been a little obdurate—if that is not too strong a word—in not rushing with open arms to accept other amendments, but at all times she has responded with courtesy to points made in our deliberations. I give an enthusiastic welcome to the Bill and look forward to seeing it on the statute book.

9.13 p.m.

Mr. Lawrence

I began by being no great friend of this Bill, and I end in the same position. Fourteen years of making almost weekly applications for bail on behalf of countless clients has not led me to see much sense in the Bill. The little positive good that it will do in terms of civil liberties could easily have been carried out through administrative action. The creation of a new offence is a shot in the dark, and the Bill's provisions may even do some positive harm.

I wish to stress two points. What is wrong with our penal system is not so much that too many people are unjustly remanded in custody—although if any people fall into that category that, of course, is bad—but that the Government, and perhaps successive Governments, have totally failed to provide an adequate penal system with adequate prison accommodation for those who are properly sentenced. That is the direction to which the Government must now turn their attention.

Secondly, I believe that people outside the House may regard the Bill as a measure aimed at bringing about a substantial change in the operation of the law. They may take the view that it liberalises the situation or that it further weakens the forces of law and order—and in some respects it may possibly do so in limiting the discretion of the judiciary—but broadly those beliefs would, I think, be wrong. The process of the courts, granting and refusing bail, will continue very much as it has always done in recent times, through the exercise of broad principles of common sense and good will by all parties to the operation of our legal system.

The phrase "need not" appears time and again in this legislation. That gives a sufficiently wide discretion in most situations for the judiciary, whether magistrates or Crown Court judges, to use their discretion and apply common sense.

The courts and those who serve the legal system will continue to observe the tenet of common sense and the need to serve society. In my view, nothing in the Bill will affect that. Seldom will it be that persons granted bail under the Bill would not have been granted it if there had not been this Bill. Seldom will it be that persons who would not have been granted bail will be granted bail after the passage of the Bill.

With respect to the hon. Member for Ormskirk (Mr. Kilroy-Silk), who has now left the Chamber, he is engaging in wishful thinking if he really believes that the Bill will make very much difference. If I am right, the Bill will turn out largely to be a waste of our time. It will be just another example of the Government churning out legislation for the sake of it. The amount of energy which has been involved would have been far better exerted in making the Children and Young Persons Act work and in taking some notice of the report of the Select Committee on the Children and Young Persons Act.

Perhaps even that ought to pale into insignificance beside the primary challenge which faces the Government and all of us in this place—that is, to stop this country from sinking down the drain. Wasting our time on pieces of legislation such as this does no credit to this Government or to the good name of Parliament.

9.17 p.m.

Dr. Summerskill

I believe that the Bill will have a significant impact on the frequency with which bail is granted. This must be welcome for the person concerned, who might otherwise unnecessarily have had to spend time in prison, and for our hard-pressed prison service, which would have had to accommodate him.

In spite of the remarks of the hon. Member for Burton (Mr. Lawrence), there has been general approval from all sides for the fundamental aims of the Bill. The differences of view have been concerned with the way in which we should achieve the correct balance between, on the one hand, a desire to ensure that as few people as possible should be remanded in custody and, on the other hand, the recognition that there will always be circumstances in which someone must be remanded in custody.

We believe that we have the right balance, but there will always be room for argument at the margins. These differences should not be allowed to obscure two fundamental and significant changes in the law and practice relating to bail introduced by the Bill.

The first is the provision in Clause 4, that a person accused of an offence shall be granted bail unless he falls within one or other of the exceptions set out in Schedule 1. The second is the provision in Clause 5, that where a court withholds bail in criminal proceedings or imposes conditions on the grant of bail, it shall give reasons for its action.

I should like to mention a number of constructive changes that were made in Committee. The Bill now covers the position of defendants who are remanded after conviction, but before sentence, for further inquiries to be made. Changes were also made further limiting the power to remand in custody a person accused of an offence not punishable with imprisonment.

Finally, looking ahead, I assure my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) that the Government have undertaken to consider further proposals relating to applications for bail to a judge in chambers. Discussions between the Law Society and officials of the Home Office and the Lord Chancellor's office have been arranged for September. There are important questions to discuss about the call on resources, in manpower and money terms, as well as the question of how the law might be adapted. These discussions will be held without commitment but I assure hon. Members that the matter will be pursued actively.

Question put and agreed to.

Bill accordingly read the Third time and passed, with amendments.