RIGHT OF PROSECUTION TO APPLY FOR THE WITHDRAWAL OF BAIL (Hansard, 3 August 1976)

§ Mr. Roger Sims (Chislehurst)
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker (Mr. Oscar Murton)
With this we may discuss Amendment No. 11, in Schedule 2, page 26, line 34, at end insert: 'and there shall be added— (i) On the application of the prosecution to withdraw the granting of bail."'.

§ Mr. Sims
The purpose of the Bill is ostensibly to increase the likelihood of bail being granted, and I accept that that may well be its effect. There may be circumstances in which hitherto a court would not have granted bail, but in which, when the Bill becomes an Act, it would feel obliged to do so, depending, of course, upon the court's interpretation of the Act.
If at present a magistrates' court refuses bail the defendant has the right of appeal to a judge in chambers, who has the power to reverse the magistrate's decision. The clause and the amendment are designed to give the prosecution precisely similar rights. After all, there could be a case in which the police opposed bail for reasons they gave to the court but in which the court nevertheless granted bail. The police might feel quite genuinely that the criteria laid down in the Bill for withholding bail were met and that the magistrate's decision was wrong. As the Bill stands, nothing could be done.
1486 Under my clause, the prosecution would have the right to appeal to a judge in chambers in exactly the same way as the defendant asks the judge to review the decision and, if he is so minded, to reverse it. The clause gives additional protection to the public, whose interests are more important than those of the defendant on remand. I hope that on those grounds the House will support the clause.

The Under-Secretary of State for the Home Department (Dr. Shirley Summer-skill
The effect of the new clause would be to give the prosecution the right to apply to a judge of the High Court for the withdrawal of bail. At present, there is no appeal against a court's decision to grant bail, though the court which granted it may also withdraw it. The amendment to Schedule 2 is presumably aimed at providing an appeal to the Court of Appeal against the grant of bail by the Crown court pending an appeal—though this is in any case unnecessary, since only the Court of Appeal has power to grant bail in such circumstances.
The basic issue here is whether the prosecution should be able to challenge a court's decision to grant a person bail. The Working Party on Bail Procedures in Magistrates' Courts considered but rejected a proposal that the prosecution should have the right to appeal against the grant of bail as a safeguard in the occasional cases where the police feel strongly that bail should not have been granted or when, after bail has been granted, new facts come to light, which suggest that the defendant should be in custody. The Government share the working party's view for the following reasons.
For the appeal to be effective it would obviously be necessary for the defendant to remain in custody until it had been determined—which would effectively negate the granting of bail. Secondly, the police already have wide powers to arrest without warrant a person who has been released on bail if they have reasonable grounds for believing that he is likely to abscond or breach the conditions of his bail, or for suspecting that he has broken any of those conditions. It seems preferable that the police should continue 1487 to rely on these powers of arrest—which ensure that solid grounds exist for taking the person into custody—rather than to have a right of appeal against the initial decision to grant bail.
A third objection to the clause would be that such an appeal would be against a discretion exercised on fact rather than law, which would be difficult to test except by a full rehearing. There is no existing power to appeal against an acquittal on the ground that the facts, as distinct from the law, did not justify it.
The clause proposes that the right of appeal should lie only to a High Court judge. If such a right of appeal were given to the prosecution, it ought, in logic, to be determined at the same level as a further application for bail, following a refusal, is dealt with at present—that is, by a judge of the Crown court, where the defendant has been committed to that court, and by a High Court judge in other cases. This, however, would raise questions of legal representation for the purposes of the appeal, involving additional expenditure on legal aid, whether the defendant should have the right of a personal appearance before the judge—bail applications to a judge are normally dealt with in chambers in the absence of the defendant—and the need for additional judges to hear the appeals.
There is the further complication that since the clause is drafted in terms of bail granted in any of the circumstances specified in the preceding sections of the Bill, it would give the prosecution a right to apply to a High Court judge for the withdrawal of bail which has been granted by another High Court judge. In regard to applications for bail, the Rules of the Supreme Court specifically preclude an applicant to the High Court in any criminal proceedings who has been refused bail by a judge in chambers from making a fresh application for bail to any other judge or to a Divisional Court.
The amendment, the effect of which would be to add words to Section 36 of the Criminal Appeal Act 1968, is unnecessary. No court other than the Court of Appeal itself can grant bail to an appellant; hence, there is no need to provide for the prosecution to be able to apply to the same court for its withdrawal.
1488 I hope that the reasons I have given—particularly since they are supported by the working party's view on this matter—will persuade the hon. Member that the Government cannot accept the clause or the amendment.