§ Order for Second Reading read.
§ 5.9 p.m.
§ The Minister of State, Home Office (Mr. Brynmor John)
I beg to move, That the Bill be now read a Second time.
The Bill has come to us having been considered in another place. Although this will be an important debate I have some suspicion that whatever we say or do in this debate will not form the headlines about parliamentary proceedings tomorrow. However, this is an important measure, giving effect to a number of the recommendations of the Working Party on Bail Procedures in Magistrates' Courts, set up in 1971, whose report was published in 1974.
Before dealing with the detailed provisions, perhaps I might sketch a little of the background, because this provides a useful setting in which to place the measure that we propose. The purpose of the Bill is to improve the quality of bail decisions by setting out more clearly than hitherto the questions to which the courts should address their minds when taking these important decisions, and by improving the procedure, particularly by the creation of a presumption in favour of the grant of bail, to ensure that these matters are considered at the right time.
There has been some misunderstanding of the Bill's objectives. For example, it has been represented as being merely an attempt to relieve the burden on prisons. There certainly is a burden on the prisons. About 50,000 people a year are remanded in custody before trial—
§ Mr. Eldon Griffiths (Bury St. Edmunds)
On a point of order. I wish to raise through you, Mr. Deputy Speaker, the question whether we can properly now proceed with this Bill. It is, of course, correct that the Bill was named on the Order Paper this morning, but it will be well understood by you, after your many years in the House, that many of the interests involved in the Bill, not least the police service, in which, as you know, I declare an interest, the legal profession and many others, had expected to be able to be here when the Bail Bill 476 came before the House in order to advise us on our speeches.
I have made it my business to try to make contact with those members of the police service who wish to give advice through me to the House in respect of the Bill. Partly because it is engaged in trying to protect this House from the violence which threatens it from without but mainly because it has been denied any notice and any opportunity due to the preceding procedural difficulties, the police service, among others, is denied the opportunity today of approaching hon. Members in order to put its views on this important matter affecting crime, the law and the police service of Britain.
I appeal to you, Sir, to protect the rights of the police service, the men and women in it and all that they mean, by not allowing the Bill to be taken for its Second Reading till those important minorities have been given their right as free citizens to come to Members of Parliament and ensure that their point of view is put.
§ Mr. Deputy Speaker (Mr. Bryant God-man Irvine)
Order. May I deal with one point of order at a time? The hon. Member for Bury St. Edmunds (Mr. Griffiths) is well aware that the Chair has no control over what is put on the Order Paper or not put on the Order Paper—and this is on the Order Paper.
§ Mr. Weitzman
On a point of order, Mr. Deputy Speaker. Whether there be merit in what the Member for Bury St. Edmunds (Mr. Griffiths) has said, the matter was already raised with Mr. Speaker and dealt with by him earlier today.
§ Mr. Eldon Griffiths
Further to the point of order, Mr. Deputy Speaker. With respect, I return to my point of order because it would be wrong of me to take up a point of argument here. Mr. Speaker did not in fact rule on this matter. There was discussion as to whether the Bail Bill should proceed or not and the Leader of the House maintained that it should. The point that I am putting to you, Sir, is simply one of order—
§ Mr. Deputy Speaker
Order. I think that the hon. Member may well have a point which he can raise during the debate, but it is not a point of order for me.
§ Mr. Eldon Griffiths
I am sorry. I do not wish to challenge your ruling, Mr. Deputy Speaker, for one moment—
§ Mr. Griffiths
I simply wish to record this, that in the circumstances in which I find myself it is wholly impossible for the police service to be heard—
§ Mr. Deputy Speaker
Order. If the hon. Member should be fortunate enough to catch my eye, he can make such observations as he may feel fit.
§ Mr. Kilroy-Silk
On a point of order, Mr. Deputy Speaker. Is it in order for the hon. Member for Bury St. Edmunds (Mr. Griffiths), who has just stormed from the Chamber, to refer from behind the Bar to this Chamber as a "Reichstag" and to the Minister of State as "Mussolini"?
§ Mr. Deputy Speaker
If there were any contribution from behind the Bar I would, of course, not be able to hear it.
§ Mr. John
Then the advantage was entirely yours, Mr. Deputy Speaker.
I was explaining that the working party reported as long ago as 1974. After the report was published observations were invited from all interested parties. Despite the intemperate outburst of the hon. Member for Bury St. Edmunds (Mr. Griffiths) this is not a party matter at all. This Bill has been the wish of both parties. It was under the Conservative Government that the working party was set up. It was the wish of all parties that all interested parties' observations should be invited, and that has been done. Indeed, the Bill has already gone through another place, at which time all interested parties again had ample opportunity to make their submissions, to make their points of view known and to speak to them. If the hon. Member for Bury St. Edmunds does not know the main outline of the Bill by now or the gravamen of the complaints by any interested parties, that is not a matter for the Government but a matter for the hon. Member himself, to decide whether he is diligent enough in equipping himself to make and answer points.
I was saying that there certainly is a burden on the prisons. About 50,000 people a year are remanded in custody before trial. Despite the steps which both the previous Administration and ours have taken to provide more court facilities, some of those remanded in custody have to wait weeks or months before they come to trial. It could be said that on economic grounds alone the reduction in the remand population is highly desirable, but although that is important, and although we hope that the Bill will improve the position, that is not our primary object.
Our primary object is to improve the quality of decisions on bail so that we can, to use the words of the report of the working party,enable courts to release more prisoners on bail without significantly adding to the burden of the police or diminishing the protection afforded to the public by a remand in custody".It is not the Government's intention that the prisons should be relieved at all costs. There are often compelling reasons for a remand in custody for someone charged with an offence, and the Bill sets out those reasons in Schedule 1.
479 We also recognise that, because we are forecasting future conduct, it is impossible in this field to achieve absolute certainty. Inevitably, some of the people who are remanded in custody will be acquitted, although this is only a small proportion of the total—about 3,000 out of 50,000. Inevitably also some of those remanded in custody for trial or remanded after conviction in custody for reports will not receive custodial sentences.
That does not necessarily demonstrate that a prior—
§ Mr. John
If I might finish this point, I will give way, but the continuity of my speech has already been disrupted by points of order.
What I have said does not necessarily demonstrate that the refusal to give bail on a previous occasion was wrong, since during the trial material facts might have arisen which were not available when the remand was made.
§ Mr. Kilroy-Silk
My hon. Friend said that 2,000 people in 1974 who were remanded in custody were subsequently found not guilty. He did not go on to say that 29,000, well over 50 per cent., of those remanded in custody were subsequently given a non-custodial sentence, which suggests that they should not have been in prison in the first place.
§ Mr. John
I thought that I said that some of the people had received non-custodial sentences. The figures are much as my hon. Friend described.
The point I make is that the subsequent fact that they receive non-custodial sentences does not of itself make wrong the initial decision to remand in custody. There is much rationalisation after the event when looking at figures of that kind.
This country's record for granting bail compares favourably with that of most other Western European countries. Although we have no reason to be ashamed of our record there is still room for improvement. I must stress that a Bill can only go part of the way, because the practice of the courts and others concerned with the judicial process, including the police, are important.
480 The Working Party on Bail Procedures in Magistrates' Courts made a number of recommendations for administrative changes which did not involve legislation and which the Home Office recommended to the courts in a circular issued in October 1975. The Bill restates the practices of many of the courts. For example, many courts have presumed that bail should be granted and they have taken decisions accordingly. We feel that it is right and valuable to state these general principles in statutory form.
In introducing a measure of this kind I am conscious that the Government are in a dilemma. Those who are devoted to penal reform say that we are not moving fast enough or going far enough and that we should strengthen the provisions so as almost to force courts to grant bail. There are others who feel that legislation of this kind deprives courts of their discretion, and that by fettering them by such legislation we do more harm than good. We must steer a middle course between those extreme views.
The Bill is not a hasty measure. It has not been embarked upon without full consideration. The working party was set up following recommendations made by the Magistrates' Association to the Home Office in June 1971. The working party included a stipendiary magistrate, a circuit judge with experience as a stipendiary magistrate, a distinguished academic who had been a lay magistrate, three justices' clerks and representatives of the police. Its report was published in the spring of 1974 and it has subsequently received widespread support. The comments on the report have been carefully considered, and on virtually every point we have accepted everything that the working party said. Despite the fact that some hon. Members have complained that the Bill has been brought to the House somewhat precipitately, consideration of the whole of the Bill has been careful, and decisions have been taken on the best possible advice.
I shall now briefly outline the main provisions of the Bill. Clauses 1 and 2 deal with definitions. I draw the atttention of the House in particular to the definition of the phrase "bail in criminal proceedings" in Clause 1. This means bail grantable in or in connection with 481 proceedings for an offence to a person who is accused or convicted of the offence, or bail grantable in connection with an offence to a person who is under arrest for the offence or for whose arrest for the offence a warrant endorsed for bail is being issued.
The Bill is not concerned with bail granted in connection with, for example, matrimonial proceedings, where a person is granted bail after being arrested for non-payment of maintenance money, The importance of this is that the offence created later in the Bill, of failing to appear at the time and place appointed, applies only to criminal proceedings and will not extend to the other proceedings of the kind to which I have referred.
Clause 3 changes fundamentally the nature of bail and establishes a new framework for the granting of bail in criminal proceedings. At present, a person who is granted bail is required to enter into an undertaking, or recognisance, to pay a sum of money if he fails to appear at the time and place required. Clause 3 abolishes, in relation to criminal proceedings, the concept of personal recognisances of defendants and provides in its place that a person who is granted bail in criminal proceedings is under a duty to surrender himself at the time and place appointed for his trial. That duty is to be enforceable in accordance with Clause 6, which creates a new offence of failing without reasonable causes to surrender to custody. Clause 3(5) confers a power, hitherto available only to the High Court and the Crown court, to require a person who is considered unlikely to remain in Great Britain till the time appointed for him to surrender, to give security for his later appearance. With the various international bodies to which we now accede and the freer movement of people, the importance of that measure can be understood.
I now come to the focal point of the whole Bill—Clause 4, which creates a presumption in favour of the granting of bail to accused persons. Subsection (1) states specifically 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 schedule sets out the circumstances in which the accused need not be granted 482 bail—for example, if the court is satisfied, on present wording, that there is an unacceptable risk that the accused, if released on bail, would fail to surrender at the time and place appointed, commit an offence whilst on bail interfere with witnesses, or otherwise obstruct the course of justice. In addition, the court need not grant him bail if it is satisfied that he should remain in custody for his own protection, or, if he is a child or young person, for his own welfare.
There are two other obvious but necessary exceptions—where the court is satisfied that it has not been practicable in the time available since the proceedings were instituted to obtain sufficient information on which to base a decision or where the accused is already in custody serving a sentence.
The wording as it stands points to an "unacceptable risk". That was the amendment which was introduced by the other place. The Government's view is that the original wording "it is probable that" is preferable to the wording inserted by the Lords. It will, therefore, be our intention to introduce in Committee a reversion to the words "it is probable that" but with the significant addition that, in paragraph 7 of the schedule, the other part of the amendment introduced by a noble Lord, setting out in more detail certain criteria, will be suitably adapted by the Government to meet the new circumstances and the new wording.
§ Mr. Edward Gardner (South Fylde)
Is it the Government's intention to introduce into Schedule 1(1) words that will have the effect that the court will have to be satisfied that it is probable that a person will fail to surrender to custody and all the other conditions?
§ Mr. John
That is the intention. I shall listen closely to the debate but at the moment, having read the proceedings in another place, I have not been persuaded that the substitution of the words "unacceptable risk" meets the particular point.
The working party considered that a corollary to creating a presumption in favour of bail was that a court should be required to give reasons when overriding the presumption. Accordingly, Clause 5 provides that where a court 483 withholds bail or grants bail subject to conditions it shall give its reasons for doing so.
This provision should be valuable in two ways. It should help to ensure that magistrates and judges address themselves to the right issues, and it will enable a defendant who is refused bail or granted bail with onerous conditions, and who wishes to make an application for bail to another court, to know what objections have to be met. It should also enable the court considering the further application to know what was in the minds of those who refused bail and should lead to greater consistency in decisions. Clause 5 also requires a record to be kept of the terms on which bail is granted and the defendant to be given a copy if he asks for one.
Clause 6 makes it an offence for a person who has been released on bail to fail without reasonable cause to surrender himself at the time and place required. This new offence replaces the existing personal recognisance system as the sanction against a person who absconds. The working party, in recommending the creation of this offence, considered that not only would it provide a greater deterrent against absconding than the largely ineffectual personal recognisance system but it would also encourage courts to grant bail more often in marginal cases. The Government do not accept the view expressed in another place that there should be no sanctions at all against absconding, because we believe that this would be likely to have the entirely contary effect of increasing custodial remands. The provisions about the offence are so designed that the offence of absconding can be dealt with at the same time as the main offence. There was clearly some anxiety in the other place about how and when it would be dealt with.
Clause 7 recites the liability to arrest for absconding or for breach of bail conditions and is largely procedural.
Clause 8 is an important clause, because it contains for the first time in a statute the factors which should be taken into account in considering the suitability of a potential surety. In the past this has been a matter of some doubt and has led to persons being wrongly rejected as sureties. The clause also makes it clear that the final decision on the suitability of 484 a surety is a matter for the court and not the police. Provision is also made for the first time for sureties who are resident in Scotland to be able to enter into their recognisance before the Scottish police rather than as at present having to travel into England for the purpose. The other point that the working party made was that sureties should not be required as a matter of course.
Clause 9, which creates a specific offence of agreeing to indemnify sureties in criminal proceedings, is one step on the way to reforming the law of conspiracy. It is already an offence under the common law of conspiracy to indemnify a surety, and this clause is included to replace the common law on this point. We agree with the working party that it is essential to retain this offence, since otherwise we would be in some danger of developing the "bail bond" system current in the United States of America. I think that not only we in this country but many people in the United States itself would consider such a development highly undesirable.
Clause 10 extends existing law by allowing coroners to grant bail to a person charged by a coroner's inquisition with murder, as well as to a person charged with manslaughter or infanticide. The Government have already indicated their intention of altering the existing law requiring coroners to commit for trial persons who have been named by a jury as responsible for a death, where the verdict is one of homicide. Such legislation will be introduced in due course. However, until then it is necessary to keep the law on the granting of bail by coroners in line with the general law, and in particular to ensure that a person charged is at no disadvantage through being committed by a coroner's inquisition.
The purpose of Clause 11 is to ensure that an unrepresented defendant who is in danger of being remanded in custody shall be granted legal aid for bail purposes on his second appearance, if he is not legally represented but wishes to be. The clause has to be read together with the Legal Aid Act 1974, which it amends in this respect. It is designed as a safety net rather than as an operative provision. The defendant would often have been represented on his first appearance by a solicitor engaged privately, a solicitor 485 he had obtained on legal aid whilst in custody after arrest, or a duty solicitor at the 45 courts—including now most of the larger ones—where duty solicitors are available. If not, he would ordinarily have applied for and obtained legal aid whilst in custody between his first and second appearance. If, however, he has still failed to obtain representation, but desires to have it, and does not have sufficient means to pay for it himself, the provision requires the court to grant legal aid on his second appearance.
Clauses 12 and 13 are procedural. I referred to Schedule 1 when speaking about Clause 4. Schedule 2—consequential and other amendments—is substantial merely because of the antiquity of bail procedures.
The details of the Bill will be considered in Committee. I hope that this introduction has been helpful. The two main changes made by the Bill are in Clauses 4 and 5, which are both significant. They are likely to be effective and to bring the bail procedures into accord with modem thinking on the matter.
I have already dealt with the question of unacceptable risk. The other proposal which was put forward in another place, and which the Government accepted in principle, was that special provision should be made for cases where the accused is charged with an offence not punishable with imprisonment. It would be unusual for a defendant to be remanded in custody in such circumstances, either before or after conviction. It was no doubt for this reason that the working party made no recommendation for a specific provision. Nevertheless, it is true that the Bill as it stands would allow such a person to be remanded in custody, if one or more of the criteria set out in Schedule 1 were met.
The Government agreed in principle that a person should not be remanded in custody where the offence was not punishable with imprisonment, except in two circumstances. One of these is where it is necessary to remand him in custody for his own protection or, if a minor, for his own welfare—for example, if he is apparently mentally unbalanced or shows suicidal tendencies. The second case is where he has failed to appear when bailed on a previous occasion and therefore the probability of his failing to 486 appear again unless remanded in custody is raised from a probability to a virtual certainty. Otherwise, the court would sometimes be obliged in the one case to turn a person loose when he was obviously likely to do himself or others an injury, or in the other case to allow him to get away with wilful defiance of the court's authority. But these would be exceptional cases.
The other concern expressed in another place was on the question of extending the presumption in favour of the granting of bail to cover persons remanded in custody for inquiries after conviction but before sentence. Most of the remands by magistrates' courts are under Section 14(3) of the Magistrates' Courts Act 1952for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case".Some such remands are, however, specifically for medical reports under Section 26 of the same Act, where the court is satisfied that the accused did the act or made the omission chargedbut is of opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined".The Crown court may also adjourn a case for inquries under its inherent powers, in which event it may either commit the defendant in custody or use the powers in Section 13(4) of the Courts Act 1971 to grant him bail. In 1974, about 12,500 persons were remanded in custody for inquiries, mostly under Section 14 of the 1952 Act. Only 2,782 were remanded under Section 26. About half this total received a custodial sentence, and another 12 per cent. were made subject to a hospital or guardianship order. Those remands arose mainly because of the requirements in Sections 19 and 20 of the Powers in Criminal Courts Act 1973, that the court, before sentencing a person under 21 to imprisonment, or imposing a first prison sentence on anyone,shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition.Courts were advised by circular in 1971 that only in rare circumstances should a young adult receive a custodial or supervisory sentence without the court 487 considering a report of the kind I have outlined.
It will be seen from these figures that a substantial proportion of defendants do not ultimately receive a custodial sentence or enter an institution for in-patient treatment. Various reasons have been adduced for this. One suggestion put forward by Mrs. Dell in an article in the New Law Journal for 1st April is thata remand in custody is the simplest and most convenient as well as the traditional, way of obtaining reports".Others have suggested that some courts use this to give an offender a taste of prison and thus deter him from committing further offences. A third possibility is that in some areas, at any rate, it is not possible to obtain a report on a person remanded on bail within a reasonable time, because of pressure on hospital facilities for out-patients. We have tried to meet the last difficulty in part by providing facilities for out-patient examination at certain prisons, but of course there are sometimes problems of travel. Lastly, and perhaps most obviously, the court may intend—and the defendant may know that the court intends—to pass a custodial sentence unless something in the report reveals a good reason why it should not do so, and in the event that the report reveals such a reason.
Since we are here concerned with persons who have been found to have committed an offence, there is not as strong a presumption in favour of the grant of bail to them as there is with purely accused persons. Nevertheless, the Government accept that there should be a presumption. The question is, in what circumstances should the presumption be overridden?
I do not think it is in dispute that where bail may be refused to an accused, it may also be refused to a person who has been convicted. The question is, what further action, if any, is necessary.
In this context, I should like to refer to the Report on Young Adult Offenders. It disapproved of the practice, in so far as it exists, of remanding in custody to give a defendant a taste of prison, on the ground that the courts should not seek to achieve such an end in a covert way. 488 On the other hand, it expressed some sympathy with the view that it may beinhumane to release an offender into the community and subsequently to take his liberty awaythough it thought that the prospect of a custodial sentence should be thought of merely as one important factor to weigh in the balance against any other considerations. As regards psychiatric reports, it did not consider that the need for a psychiatric report justifies a remand in custody where bail would otherwise be granted, but mentioned that there were complaints that psychiatrists outside the prison service take longer to prepare their reports and acknowledged that courts should be able to obtain reports at reasonably short notice. That is being done not merely for the convenience of the courts, and I am sure that the Opposition will also consider the point about the length of time in which a charge hangs over a person, with the consequent disruption of his life and well-being.
I will state the Government's general conclusion. First, we agree that a presumption in favour of bail should apply to persons remanded for inquiries after conviction but before sentence. Secondly, bail need not be granted where it would not be granted to an accused person. The criteria are set out in the Bill. Thirdly, we think that it need not be granted where the court is able to say that it is probable that it will impose a custodial sentence unless the report indicates the contrary.
Fourthly, we think that it need not be granted where it appears to the court that it would otherwise be impracticable to obtain the report. We recognise that this does not go as far as some would like, but we have to have regard to the practicalities of the situation. I hope that all hon. Gentlemen who wish to take part in the debate will recognise that this is an honest attempt to meet the needs of society and also the needs of those who are accused of offences and who do not subsequently receive custodial sentences.
Inevitably, this is a technical Bill, but I wish to emphasise that we are dealing here with often conflicting but necessary matters which must be reconciled in the interests of the protection of society and the liberty of the individual.
489 This House has a long and honourable record in resolving these two problems—[Interruption.] I say that despite the mutterings of the hon. Member for Bury St. Edmunds, who has now returned to us having failed to hear what I have said in the intervening period about steps taken to invite the views of the police, among others, on these matters. I repeat that this House has an honourable record in resolving those twin criteria. I believe that if the House gives the Bill a Second Reading, we shall add a further chapter to that honourable record.
§ 5.46 p.m.
§ Mr. Edward Gardner (South Fylde)
I am sure that the House will agree that this Bill is one of the most important pieces of legislation of its kind which the House is likely to consider for many a year. Its provisions aim at improving the quality of the administration of justice and will affect an untold number of people who may be charged with criminal offences and who, as a consequence, might be exposed to the risk of finding themselves deprived of their liberty if it were not for the change in the presumption which this Bill introduces.
The Bill deserves, and indeed demands, the most careful and thoughtful consideration by this House. I hope that I shall not be misunderstood when I say that it is a great shame that this Bill should come before the House today when our affairs have been overshadowed and overtaken by events so recently discussed. For the first time I slightly envy Ministers who are able to look at briefs prepared for them by departmental officials. I hope that when these discussions are read outside the House, it will be recognised that, although we shall try to do our best to deal with these provisions as sensibly and as firmly as we can, we have been taken by surprise because this debate is being held at a time when few of us expected to have to deal with these matters.
§ Mr. Eldon Griffiths
I am glad that my hon. and learned Friend, in his mild way, has underlined a point that I sought to make, perhaps a little less mildly, earlier. Will he not accept from me that the official Opposition have a duty to this House to complain to the Government when events make it impossible for large 490 numbers of people outside the House to make representations to their Members of Parliament? We surely must complain when those people are disabled by the Government's action from being able to see their parliamentary representatives and to put forward their views on this important Bill.
§ Mr. Gardner
I accept all of that. I understand all too well—and I hope that they will be understood outside the House—the difficulties in which we are all placed by the suddenness with which we have had to deal with this Bill.
§ Mr. Alexander W. Lyon (York)
If the hon. and learned Member will accept that proposition from his hon. Friend, will he accept from me that this Bill would have been debated in a Second Reading Committee in the Session before last if the official Opposition had permitted it to go into that Committee? It would also have been debated earlier in this Session if the Opposition had so agreed. We have had two years to receive representations about the Bill. The hon. and learned Gentleman ought to be prepared for it.
§ Mr. Gardner
I was anxious not to be driven off the serious points in this Bill. I wanted to make—and I think I made it with justification—a complaint about the fact that we suddenly find ourselves having to debate a piece of legislation of such importance at such short notice. Of course the Bill came out in March; we all know that. But we have not been reading this Bill and nothing else but this Bill since then. My hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) is absolutely right when he says that the public need the opportunity to approach their Members to put their views so that they may be reflected in this debate. Our constituents have been denied this opportunity. My hon. Friend said that I put the point mildly. I did so for the purpose of avoiding this kind of argument in the middle of an important debate. Perhaps I may get on with the points that I was trying to make.
There is no doubt that over many years hon. Members have seen the need for a Bill that contains provisions of the kind contained in this Bill, which seek—I do not say that they necessarily 491 achieve their end—to deal with the intractable problem of bail. It is a problem that will by no means be extinguished, although we hope that it will in some measure be diminished, by the Bill's provisions. The Society of Conservative Lawyers, Justice, the Criminal Bar Association and the Home Office working party have all been at one in trying to reach conclusions that would be helpful in dealing with this issue.
In looking up an old diary I saw that it is almost eight years to the day that I was appointed as chairman of a committee of Justice that had among its terms of reference a consideration of the problem of bail. That committee reached a number of conclusions as a result of many weeks of deliberation. We made a number of unanimous recommendations, which the Government of the day introduced into the Criminal Justice Act, 1967. That Act provided that bail should not be refused except on one or more specified grounds, and that if it were refused, the reasons for the refusal should be made known to the defendant. The provisions of the 1967 Act, however, applied only to people who had committed what might be described as lesser offences. It is right to say that as a result of this Act, remands in custody fell from under 40 per cent. in 1962 to 15 per cent. in 1974.
Although I agree with the Minister that our record in respect of the number of successful applications for bail is a good one—we apparently have the lowest number of people remanded in prison awaiting trial of any country in Europe, if not in the West—the fact remains that in 1974 almost 65,000 people were re-remanded in custody and of that number more than 2,000 were later found not guilty and 29,000 were given non-custodial sentences. Those figures, stated in that way, can easily be misunderstood. It is true, and I believe it is a proposition to which we would all subscribe, that a person who has been tried for a criminal offence and found not guilty should, in a perfect world, not have been subjected to imprisonment before his trial.
There are some who say that someone who has been found guilty at his trial should not have been put into prison before that trial and have had an application for bail refused. I do not support 492 that view. Indeed, in many cases when a person is not given bail and is later found guilty the court decides that his case has circumstances which enable it to pass a non-custodial sentence. One of the circumstances frequently taken into account by the court is the fact that that person has been imprisoned and has had a taste of imprisonment before the conclusion of his trial.
We accept the introduction of a statutory presumption in favour of the granting of bail to people who are awaiting trial, because we think it right that our law, which presumes innocence until guilt is established by trial, should protect people, if at all possible, from being sent to prison without good cause before they have been shown to have committed any crime.
We welcome Clause 3, which abolishes the need for personal recognisances for persons granted bail, and Clause 6, which creates a new criminal offence of failing without reasonable cause to surrender to custody. The latest paper produced by Justice, again after a considerable amount of work and research, reflects—and by that reflection approves—the various measures contained in this Bill.
I have been asked to point out to the House—because it is something that has the approval of the Opposition—that Justice has always been anxious to see that there should be what has become known as verified information available, upon which the decision whether to grant bail can be founded. Again I refer to the Justice committee. One of our recommendations was that the kind of work being done by the Manhattan bail project by the Vera Institute of Justice in New York, which had experimented in providing verified information, should be followed here. I am glad to hear that such an experiment is now being carried out here and that it appears to be successful and helpful.
We on the Opposition side of the House—I say this after considerable thought and discussion—are not satisfied that the aims that the Bill clearly has and declares are likely to be achieved by its provisions in their present form. We are particularly anxious about the interpretation of Clause 4 and Schedule 1. It is the reading of Clause 4 with Schedule 1 that gives us a good deal of concern.
493 We recognise that the general aim of the Bill, to keep as many people as possible out of prison, is laudable. We recognise that the aim of protecting people from unjustified and unnecessary imprisonment is laudable. At the same time, we bear in mind the equal and balancing requirement of seeing that the public is protected against people who, if left at large, might be a danger to it.
The impression one gets on reading the Bill is that a discretion is left to the magistrates or to the Crown court to allow bail in certain circumstances, but, on reading Schedule 1, one begins to wonder whether that discretion is anything more than an illusion. I understand that in Committee the Government intend to alter the wording of Schedule 1. Paragraph 1 reads:The accused need not be granted bail if the court is satisfied that there is an unacceptable risk that the accused, if released on bail (whether subject to conditions or not) wouldand there then follow the three conditions that have to be satisfied. I understand from the Minister that it is the Government's intention to replace "unacceptable risk" with the word "probable".
I do not follow how a court is going to be satisfied that it is probable that a certain person is likely to fail to surrender to custody. What kind of evidence would one expect to discover that would bring the court to a state of mind in which it would be able to say "This person will probably fail to surrender to custody", or "This person will probably commit an offence whilst on bail", or "This person will probably interfere with witnesses or otherwise obstruct the course of justice"? How is the court to be persuaded that these things are probable? It is making conditions which make it impossible for a court to act effectively. Unless in Committee we can do something pretty fundamental about the wording of Schedule 1, we are going to say, in effect, that the presumption that a person shall be entitled to bail is a presumption that is to be enjoyed by anyone who is charged with a criminal offence.
§ Mr. Gardner
Yes. I think that that is so in both cases. Perhaps I can suggest 494 a way out. It is not something for which I can claim any responsibility. It is a suggestion by the Criminal Bar Association, and the House should consider it carefully. But first I want to illustrate the dangers which lie at present in the restricted language of Schedule 1.
Supposing—and there will be many cases where this applies—there is a bloody murderer or someone who has committed a heinous crime involving extreme violence. Where do we find in the wording of Schedule 1 any kind of opening for a court to say "In this case, taking into account the gravity and nature of the offence, we cannot expose the public to the risk of allowing this man to remain at large"?
§ Mr. Kilroy-Silk
But surely the hon. and learned Gentleman is talking about a serious offence which will carry with it severe and serious penalties. Presumably, in such a case, the court would have to do no more than refer to paragraph 1(a) of Schedule 1 to consider that that person will be one who will be assumed to fail to surrender to custody.
§ Mr. Gardner
No. That would be to abuse the wording of Schedule 1. First, if the Government have their way, the condition will be that it will be "probable" that the person will fail to surrender to custody. But a person who has committed a dreadful crime may well be a person who would surrender to custody, although, of course, the more extreme the gravity of the crime, the more likely it is that, if there is any propensity to run away, the person involved will be tempted not to surrender.
§ Mr. Weitzman
I honestly cannot see where the difficulty arises. Has the hon. and learned Gentleman read through the whole of paragraph 7(a), (b), (c) and (d)? Surely a court with any sense of responsibility must take all these factors into account in dealing with paragraph 1 of Schedule 1.Where does the difficulty arise?
§ Mr. Gardner
The difficulty arises in any specific words in Schedule 1 which cover the nature and the gravity of the crime. I submit to the House that one of the provisions expressly put into the Criminal Justice Act 1967 should also be put into this Bill. This suggestion has the support of the Criminal Bar Association. The provision in question is Section 495 18(5)(f), which says, in effect, that magistrates shall not be required to remand or commit a person on bail.where the act or any of the acts constituting the offence with which he is charged consisted of an assault on or threat of violence to another person, or of having or possessing a firearm, an imitation firearm, an explosive or an offensive weapon, or of indecent conduct with or towards a person under the age of 16 years".
§ Mr. Weitzman
But where is the difference between that and paragraph 7(a) of Schedule 1, to which I drew attention, which deals with the nature and seriousness of the offence?
§ Mr. Gardner
I want it to be expressed in language which is understood not only by lawyers but by the public outside. The hon. and learned Member should not dismiss so readily a serious contention of this kind. I want the public to know what the Bill is about and to realise that the statutory words in the Bill do something to protect them. I do not accept at the moment that in its present form the Bill gives the public that protection.
The recommendation of the Criminal Bar Association, which I put to the Government on behalf of the Opposition, is that the words of Schedule 1 should indicate that, where there is a real possibility that a person is likely to fail to surrender to custody, or is likely to commit an offence while on bail—and there should be no great difficulty in so finding on evidence—the court should be in a position to refuse bail.
I do not want to persist with what may well be, in effect, a Committee point in a Second Reading speech, but on the Opposition side of the House we recognise and emphasise the need for the maximum protection of the public, and we do not accept that the Bill in its present form enables the public to be protected as it deserves to be.
There are a number of occasions when the question of bail arises and must arise for consideration. The first is after a person has been charged with a criminal offence. The second is after a case has been committed for trial by a magistrates' court. The third is during the trial of the offence itself, when the judge has to make up his mind whether to continue bail at all times, or whether to restrict bail to certain times and to exclude it 496 at others—for example, during a midday adjournment.
The Bill deals, or is intended to deal, with each of those occasions, but the question of bail arises also after conviction and after sentence. I understand the Minister to have said, in the course of his opening remarks, that the Government now intend to amend the Bill so that the presumption that a person is entitled to bail will continue after conviction and before sentence. That proposition ought to be examined very carefully indeed before it is accepted by the House, for all kinds of reasons.
Finally, concerning the Bill as a whole, I draw attention to an important provision that refers to chidren and young people. As has been said so often before by hon. Members on both sides of the House, there is the most intense disquiet at the prospect of children under the age of 17 being sent to adult prisons. We know that this is happening now. There would, I think, be few, if any, hon. Members in the House who would not wish to see the Government put an end to this practice forthwith.
§ 6.18 p.m.
§ Mr. Andrew F. Bennett (Stockport, North)
I very much welcome the opportunity to debate this matter on the Floor of the House today, instead of having it debated in a Second Reading Committee upstairs.
I share the concern of some hon. Members about the problems that the Bill presents to hon. Members and to outside bodies. I have received representations from many groups that are in favour of the legislation but want to see it amended in different directions. Having collected this information, I put it on one side, waiting and hoping to be selected for the Second Reading Committee, at which stage I would have given the material rather more careful scrutiny than I have been able to do this afternoon. However, it is a considerable advantage that the matter is being taken on the Floor of the House, because an important measure of this sort gains some stature by being taken in this way.
I welcome the measure, which is an attempt to reduce the number of people who are at the moment imprisoned. That is the major aspect of the Bill. Clearly, 497 there are many ways in which this can be done. One of the most important is to try to get out of prison those who are clearly not guilty of any offence. Although it may be a fairly small proportion of people who at the moment are remanded in custody awaiting trial and are then acquitted, it is still important for us to get them out of prison altogether. The advantage of getting such people out of prison is that we thereby help to reduce the present overcrowding in our prisons. This is important both for the prison officers and for the people who should be receiving treatment as well as punishment in prison.
We then come to the much more substantial number who may in the end be found guilty, but not of an offence that will produce a prison sentence. I realise that this category is harder to deal with, because some of them will not receive a prison sentence, for the very reason that they have been remanded in custody. But there are still many people remanded in custody awaiting trial who would in no circumstances, if convicted, receive prison sentences. In my view, it is very important that such people should not be held in prison.
In this respect, I am also concerned about the advice that some lawyers give to clients whom they know to be guilty. All too often, they encourage them to stay in prison on remand rather than try to get out on bail, because conditions in prison, on remand, are that much better than after sentence. I accept that remand prisoners get some privileges, but they do not receive treatment of any kind while on remand. In my view, in many cases it would be far better for lawyers to suggest to their clients that, although they are "guilty" and eventually will go to prison, they should apply for bail and spend their time while on remand trying to sort out some of the real problems that they will leave behind for their families, rather than relying on social workers to cope with them after they have been sentenced.
I should like to see lawyers advising their clients to apply for bail so that they might have an opportunity to sort out their personal problems, with the result that, when the time comes for them to serve their prison sentences, it is the sentence that involves punishment and 498 treatment, rather than the limbo stage of being held on remand.
There are many strong reasons for keeping people out of prison if they are not guilty of the offences with which they have been charged, not the least of which is the cost to the community. It is ridiculous to spend £60 or £70 a week keeping someone in prison only to find afterwards that he is not guilty of the offence with which he is charged. What is more, it results in a considerable sense of injustice, not only on the person concerned but on his family, if he is held in prison when he knows, and when eventually the court establishes, that he is innocent.
One of the strongest arguments in favour of the Bill is the wide variation between the regions in the numbers of people let out on bail. It is ridiculous to have a situation in which in Liverpool, for example, an accused person has a better chance of being released on bail than if he lives elsewhere in the country and is accused of the same offence.
Then there are wide variations in practice according to the social class and background of the accused person. Recently I dealt with a case in my own constituency in which an accused man was refused bail because, according to the police, he had no fixed abode. In fact, he had been living in the same lodging-house for 18 months. The use of the term "no fixed abode" is extremely unfortunate. I realise that many people who live in lodging-houses move frequently. However, if a person has lived in the same lodging-house for 18 months, it is a little unfortunate if he is said by the police to have no fixed abode.
One argument against this measure is the increased possibility of people not surrendering to bail. The figures suggest that, at the moment, between 3 per cent. and 6 per cent. do not surrender to bail. However, the case can be argued two ways. It can be argued that if we extended bail we would not see many more people failing to surrender. The same figures also argue that we have it about right now. But it seems that, in view of the very small percentage who do not surrender, we ought to take the risk of increasing the figure, bearing in mind all the benefits involved in doing so.
499 I have heard it argued by police officers that this proposal will involve them in more work and that it will take up more of their time. I do not accept that, because, on the presumption that people should have bail, the police will spend less of their time checking up on people and less time in court opposing bail applications, and I suspect that this saving of time will match any additional time and work involved in going after people who have jumped bail.
§ Mr. Eldon Griffiths
Will the hon. Gentleman take it from me that the police service wishes to make representations on this matter? The police wish to provide evidence and statistics which would have been helpful to the hon. Gentleman and to the House as a whole in arriving at a judgment. The hon. Gentleman has been denied access to their views, as has the House as a whole.
§ Mr. Bennett
I have evidence from some police officers. But it is amazing that, this matter having been on the Order Paper for such a long time, if the police had any intention of supplying every hon. Member with this information they did not do so before now. I accept that in Committee the police may wish to supply some Members with much more detailed information. However, the information that I have received about the number of people who fail to surrender to bail does not suggest that the police would be involved in a great deal more work.
I am more concerned about the problem of informing people who are out on bail when they are due to appear in court. If they are in custody, there is no difficulty, but if they are out on bail it is sometimes difficult to let them know when they should appear in court. In my experience, the police are often used as messengers for this purpose. That does not seem to be a very good use of police time, and I hope that in Committee we shall be able to look further into how far we can ensure that people know when they are required to appear in court without the need to involve police officers in this work.
Recently, I have become aware of an attitude among individual policemen in my constituency that causes them to believe that a little time in prison is good 500 for certain people. There is a growing divergence of opinion between the police and social workers. In the past few months the two bodies have been extremely critical of each other. I appreciate that this may be the overriding feeling in the mind of the policeman who has seen the damage or destruction involved in the case with which he is dealing. But, recently, I inquired about a constituent of mine who had been refused bail and, as soon as I began talking to the officer concerned to try to get the background to the case, he stressed the human misery that had been created by the offence, and I could well understand why he wanted to see a strong prison sentence imposed. However, when I spoke to the social worker involved in the case, I became aware that he was more concerned with the mental state of the person who had committed the crime and had not seen the effect of the crime. As a result, he had a completely different attitude.
Although I do not advocate policemen and social workers doing each others' jobs, it is very important that in their training both should have a little more experience of the respective problems that they have to face. Then, perhaps, we could get away from some of the argument and dispute between them.
If policemen are not happy with the sentences that our courts are imposing, we come back to the need for a change in the law. We do not want the police trying to get round the courts to ensure that accused persons spend some time in prison on remand, which is in my view a very dangerous and damaging way for the police to behave.
It is very important that we emphasise that no one should be held in custody charged with an offence when a conviction will not involve a custodial sentence. The Minister went a long way to meet this point, but he appeared to have reservations about people who might be a danger to themselves or to the community. In such cases, far more emphasis should be placed on finding somewhere other than prison for these people to spend their remand period.
I came across an utterly ridiculous situation when I was dealing with the case of a constituent of mine. For some time, 501 he had been voluntarily attending a mental hospital. He discharged himself and subsequently became involved in a series of offences. The court decided to remand him in custody for medical reports. In the end, when the medical report came through it stated that a custodial sentence was completely inappropriate for this person. What was required was to get him back to hospital for treatment as soon as possible. But he spent three weeks in Risley, which was the least suitable place for a person in this state of illness. It is very important that in this legislation we try to ensure that if people are a danger to themselves or to someone else they are put in the right place, which is very often not a prison.
It seems to me that the Bill does not provide the best way to reduce the number of people in prison, because it puts another offence on the statute book that carries a prison sentence. Obviously, one is increasing the risk of people not surrendering to bail by bringing forward this legislation, but I think that £400 or 12 months' imprisonment is not the best approach. I hope that in Committee we can probe the Bill a little further to see whether there are better approaches than the one we have. It seems strange that a Bill such as this can produce a new offence that actually can put someone into prison.
If the Bill is successful, nobody who is subsequently acquitted will spend time remanded in custody. But we should probe the question whether people who are remanded in custody and later found to be not guilty are entitled to compensation for the havoc that has been done to their lives, and also the financial havoc that has been caused. I realise that problems of compensation are difficult, but I hope we can probe this in Committee.
The Bill as it stands will do nothing to speed up the process of justice, which is something I would like to see. The biggest problem we have at the moment arises from the time it takes between a person appearing in court and the next stage in the proceedings. If that time could be reduced, much of the debate on the necessity for bail could be shortened. We must consider ways in which we can speed up the process of justice, to ensure that people spend less time remanded in custody.
502 I welcome this measure, and I am glad it has been taken on the Floor of the House. However, in the rushed circumstances of this debate, it has not been easy to look through all the material that should be put forward.
§ 6.35 p.m.
§ Mr. Roger Sims (Chislehurst)
It is not my intention to oppose the Second Reading of this Bill, but I had hoped that we would hear from the Minister of State a fuller justification for it. 'What does it achieve, other than create a new offence of failing to surrender to bail? My reading of the Bill is that it seems to put into legal form what is already the general practice. The Minister said that the Bill makes clearer the provision of bail, but I think that all it does is to repeat what was in the Home Office circular, after the working party report. Shortly after publication of that report, the Home Office issued Circular 155 of 1975, which dealt precisely with the circumstances in which bail should or should not be given in exactly similar terms to those contained in the Bill.
We are told that the Bill introduces a presumption in favour of bail, but that presumption already exists. In paragraph 5 of the Home Office circular it says:It is intended that the legislation now being prepared should introduce a statutory presumption. The Secretary of State is aware that many courts already proceed in accordance with the Working Party's recommendations and he hopes that all courts will adopt this practice pending the introduction of a statutory presumption.This presumption is already there. It is not necessary to have it written into the Bill.
§ Mr. Sims
It may not be statutory, but I am not convinced that it is necessary to put the presumption into statutory form, because it is generally practised in most courts already.
The fact that the Bill has been brought forward in these terms implies that magistrates' courts are not granting bail when they should. That is the implication, and I think it is perhaps a little unjust. When a magistrate is presented with a bail application it is a difficult decision for him. But magistrates spend a great deal of time and trouble in considering every application made to them, and my con 503 cern is that the implementation of the Bill will be a further step in restricting the discretion of the courts.
One of the reasons that the Minister gave for introducing the Bill was that he hoped it would go some way to reducing the prison population. Will it do so? The Minister should bear in mind the point made by my hon. and learned Friend the Member for South Fylde (Mr. Gardner) that we have in this country one of the lowest figures in the world—six in every 100,000. In any case, the fact that some people are remanded in custody and are not subsequently imprisoned is not necessarily a relevant argument in this context. There is a difference between "preventive custody" and "penalty after conviction." If the court really believes that a defendant may not surrender to bail, or that he may interfere with witnesses before the hearing, it is right that bail should be withheld, whatever the likely outcome if the defendant is found guilty.
My fear is that if the circumstances for bail are laid down in an Act of Parliament, the granting of bail becomes more rigid. At present, every case is dealt with on its merits. Under the Bill's provisions, rules are laid down, and in certain circumstances bail could be granted when it should not be, and the reverse could also apply. The Minister said that the purpose was to improve the quality of decisions on bail. I am afraid that it may have the reverse effect.
If the Bill proceeds I hope that we shall give further consideration to the circumstances outlined in Schedule 1, to which reference has already been made. At present, it reads:The accused need not be granted bail if the court is satisfied that there is an unacceptable risk that the accused, if released on bail (whether subject to conditions or not) would—I would have thought that "might" would be a more appropriate word than "would" here. The court cannot possibly know what a defendant is likely to do—it can only have suspicions.
- (a) fail to surrender to custody, or
- (b) commit an offence while on bail, or
- (c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person."
What about the circumstances in which the defendant is likely to do harm to 504 himself or others? Perhaps the Bill covers circumstances in which he might do harm to himself in paragraph 2 of Schedule 1, but circumstances in which he might harm others do not seem to be covered.
We have had a brief discussion on the extent to which the seriousness of offences will be covered in the final form of the Bill. I can just imagine the sort of arguments which we probably will have about what constitutes "unacceptable risks". This only illustrates the fact that the Bill will give wide scope for legal argument. One can visualise hon. and learned Members from both sides of the House having a field day disputing whether an offence is serious in terms of the Act, what an unacceptable risk constitutes, and what "probable" means in a legal context.
Reference has been made to bail after conviction. I think there should not be an automatic assumption for that. If there is a question of further remand for reports, in addition to the criteria laid down there should be added the one that the court may consider a custodial sentence—in which case continued custody may be appropriate so that reports can be obtained, when they can be obtained only, or perhaps more quickly, while the person is in custody.
§ Mr. John
I think that the points that I made, although not exactly meeting the formula that the hon. Gentleman is now putting forward, substantially meet his point, particularly where there is no other way of obtaining reports. I stated that this was one of the criteria under which bail should not be granted when awaiting reports.
§ Mr. Sims
Yes, indeed. The hon. Gentleman referred to that matter, but I was not clear about the form in which that would be included in the Bill. Perhaps this is one of the points that we may discuss in Committee.
I should like to mention briefly three further points for consideration in Committee. The first is the question whether there should be some sort of penalty for false information given on bail information forms, because it may well be that a court could be misled into giving bail in circumstances in which it should not have done so.
505 Secondly, if a defendant has the right of appeal to a judge in chambers, against a bail refusal, is there not a case for the prosecution having a similar right of appeal where bail has been granted against the prosecution's wish?
Thirdly, perhaps we may take the opportunity in Committee to use the Bill to revive a proposal raised in another place in connection with the Criminal Justice Act 1972, but subsequently dropped, giving the courts, when bail has been refused, the power to remand in custody for longer than eight days; for example, for 28 days, with—I add this stipulation—the consent of the defendant. One can deploy the argument on the issue at greater length in Committee. However, it seems to me that the saving of time and expense—not least police time, and the cost of legal aid upon such custody—would be substantial.
Finally, there is an issue that has not been specifically mentioned and does not appear on the face of the Bill but which is important to its successful implementation. That is the issue of who is to complete the bail information forms that will be an essential part of the procedure if the Bill becomes law. The Home Office circular to which I have referred suggests that probation officers would be the appropriate people to do it, and, of course, probation officers have been used in the experiment at Camberwell. The working party's report suggests that it would be the job of the court staff to complete the forms. Another possibility raised in certain quarters is that it be the job of the police.
I should have thought that there were strong arguments against any of those three bodies of people being involved in completing these forms. Probation officers have a rôle akin to that of social workers. They are involved in advising, assisting and befriending defendants. They are certainly not administrators and would not be appropriate for the task. Court clerks may be involved in the subsequent case, and of course, almost certainly the police will be involved. In any event, all of those three bodies suffer from similar problems and shortage of manpower. Perhaps the answer is something on the lines of a duty solicitor, or a trained voluntary worker, who would be prepared to undertake this aspect of the work.
506 As I have indicated, I have yet to be completely convinced that this is a necessary Bill. However, if it receives a Second Reading, as I trust it will, I hope that we can fashion it into an instrument that will enhance, rather than detract from, the efficiency and justice of our system of magistrates' courts—a system that is unique.
§ 6.44 p.m.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
I read with great interest the debate in another place. I am very glad that I did so, because I share the indignation expressed by the hon. and learned Member for South Fylde (Mr. Gardner) and by another hon. Member about the fact that the debate has come on without any real notice. This is a very important Bill. I should have thought that much more time should have been given so that we could ascertain the views of constituents and the public, and so that expressions of opinion on this matter could have been given in the Press and we could have dealt with it in some detail. I am glad that I read the debate in another place, because, at any rate, I went into the views that were expressed there.
This is a very important Bill, because it deals with the liberty of the subject. After all, the principle that every person is deemed to be innocent until his guilt has been proved, and that the burden of proof of that guilt lies upon the prosecution, is something that is most important in our law. Therefore, unless there are weighty reasons to the contrary, surely it is of vital importance that bail should be granted in every case.
The hon. and learned Gentleman mentioned the number of men and women who were remanded in prison before trial for criminal offences in 1974. I think that it was overy 60,000. We know that every year about 2,000 persons are remanded in custody and are subsequently acquitted. There may be reasons why they are not given bail—in some cases they may be important reasons—but, bearing in mind those figures, it is startling that so many people are treated in that way. Bearing in mind how full our prisons are and how difficult it is to cope with the prisoners, and how, in many cases, there exist rotten conditions with which, because of our economic circumstances, we cannot deal. 507 in a matter of this kind surely the question of bail must be very carefully considered.
Therefore, it is extremely important that the Bill should enact in Clause 4 the principle that bail shall be granted, the emphasis being on the word "shall". Clearly, there must be exceptions. I take it that those exceptions are not merely cases in which a police officer opposes bail or gives an opinion that cannot be tested. The hon. and learned Gentleman referred to the exceptions in Schedule 1. It seems that the exceptions are very properly set out. Paragraph 1 reads.
There has been some suggestion that the words "unacceptable risk" should be deleted in Committee and that the word "probable" should be inserted. I certainly think that the words "unacceptable risk" ought to be deleted, because they involve an almost impossible task in the question of bail. What is an unacceptable risk?
- "(a) fail to surrender to custody, or
- (b) commit an offence while on bail, or
- (c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person."
§ Mr. Edward Gardner
I agree with the hon. and learned Gentleman that the words "unacceptable risk" erect a burden of proof that is almost insurmountable, but is not the word "probable" an even higher obstacle?
§ Mr. Weitzman
No, I do not agree. I do not know whether the word "probable" is satisfactory. I am not suggesting that it is completely satisfactory, but it is probably much better than the words "an unacceptable risk". This matter must be looked at very carefully in Committee, because something must be done to put it in its proper perspective. Although I think, with respect, that the hon. and learned Gentleman is wrong in referring to the suggestion made that the words in the 1967 Act ought to be put in, in my view the interpretation clause—Clause 7—is very satisfactory, with the omission, of course, of the constitution of an unacceptable risk. Perhaps the words should be the consequence of events occurring constitutes the "probability", or something to that effect. I invite the hon. and learned Gentleman to look carefully at the words in sub- 508 paragraphs (a), (b), (c) and (d), because they set up exactly the same standard that he was suggesting. They are there as a complete guidance to the magistrates.
§ Mr. Edward Gardner
Does the hon. and learned Gentleman not see that the interpretation in paragraph 7 of Schedule 1 and the other grounds in paragraph 1 are the only grounds upon which magistrates and Crown courts can act? They are not extended by the interpretation sections; they are merely enlarged. They do not cover our suggested new ground of something similar to the provision in the 1967 Act.
§ Mr. Weitzman
I do not appreciate the force of that argument. Paragraph 1(a) mentions failure to surrender to custody, and when a magistrate is considering whether to grant bail he will take into account such matters and look at the interpretation sections to judge the situation in the light of those sections. I see nothing to prevent magistrates considering the matter and acting upon that basis.
I welcome Clause 3, which abolishes recognisances. They have often been useless and extracting them has led to real hardship. Certain reasonable safeguards are included in the Bill. Under Clause 6, a person who fails to surrender to custody will be guilty of a criminal offence and subject to the penalties contained in subsection (7)
Perhaps the most important point was made when the Bill was considered in another place. It is the need for information to be given to magistrates. The pilot schemes being carried out to secure that information were mentioned in the debate in another place.
Magistrates have a most difficult task if they wish to deal with bail applications fairly. They have to take into account the need to protect the defendant's liberty, but also the need to protect the public from the danger of further crimes. It is important that they should have the fullest possible information about a defendant's background. I hope everything possible will be done to assist them in order that they may be able to deal with applications fairly.
Clause 11 relates to legal aid. It is important that this should be granted wherever possible. I know the difficulties 509 caused by our present economic situation, but the granting of legal aid should be constantly kept in mind in court cases.
It will be very difficult to impose upon judges the obligation set out in the Bill to grant bail after conviction and before sentencing. When a jury has convicted a man, the judge will know the character and background of the defendant and the consideration of bail will then be an entirely different matter.
Judges sometimes grant bail if there is an appeal on an important legal point, but these are rather exceptional cases and I hope that before coming to a decision on this matter, hon. Members will consider it very carefully in Committee. Considerable thought must be given to the Bill before we get down to brass tacks.
I support the Bill. It will be a great help in many directions. I hope that it will receive attention in Committee and come out in a satisfactory form, as something that we can all support as it is put on the statute book.
§ 6.56 p.m.
§ Mr. John Stonehouse (Walsall, North)
I am glad to follow the speech of the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman), who speaks with much experience on this subject. I am also glad to be able to agree with his first point about this Bill being foisted on the House for Second Reading.
It is quite unsatisfactory that such an important Bill should be brought up suddenly because other business is not being considered today. The Bill has been considered in another place and hon. Members have had the opportunity to read a report of the debate that took place there, but the hon. Member for Bury St. Edmunds (Mr. Griffiths), who speaks for the Police Federation in this House, made a valid point when he said there are many outside organisations which wish to communicate their feelings on the Bill to hon. Members.
These organisations had assumed that there would be a public announcement stating when the Bill was to be considered. It is normal for them to circularise hon. Members a few days before a Second Reading debate. They know that hon. Members are inundated with correspondence and that if they receive 510 material weeks before a debate it may get lost.
I can speak from unique experience. I suppose that this is the first time that an hon. Member has spoken in a debate on the bail system when he is on bail himself. I have not only been on bail for some time, but I also have the unique experience, among those speaking in this debate, that bail was refused to me not once but on many occasions. I have had the opportunity of seeing the situation from the other side of the fence.
I do not intend to talk about my case, but my experience has given me an insight into the way in which the bail system operates and into the conditions suffered by the poor, unfortunate people who are denied bail after being accused of an offence and find themselves in a remand prison. The situation is very serious, and I shall refer to that aspect in a few moments.
The House of Commons research department has produced figures showing that in 1974—the most recent year for which statistics are available—51,422 persons were held for some time during the year awaiting trial. Of those, 2,101 were found not guilty or discharged and 20,915 were convicted of minor offences and received no custodial sentence. Is that figure disputed? According to the research document that I have in my hand it is 20,915, but that may be inaccurate. Research documents of the House are sometimes wrong. Most of us have seen the Home Office working party report, which gave similar figures going back over the past 10 or 15 years. For almost any year the figures demonstrate, whatever figures are used, that a large number of people go into remand prisons for some considerable time. At the end of the day, about 40 per cent. of them are acquitted or given non-custodial sentences.
The situation is serious. I read the report of the debate in another place. I was interested to read the comment of Lord Wigoder, who said that the situation was serious not only because people were denied bail but because they wereremanded in custody to places where the conditions are as unpleasant as in Brixton Prison "—[Official Report, House of Lords, 22nd March 1976; Vol. 369, c. 520.]I was pleased that Lord Hailsham agreed with that comment. Indeed. Lord 511 Hailsham must be complimented, because when he was Lord Chancellor he made some very outstanding statements, which have now found their way into the Bill, about the right of all Englishmen to bail.
Comments were made in another place about the conditions in Brixton. I share in those comments. I wrote an article about the matter in the New Statesman last September, shortly after I came out of Brixton. I pointed out that the conditions were deplorable. I wrote:The pressure on space and the antiquated buildings condemn the defendants to live in squalid and dehumanising conditions. In C Wing in Brixton, built for just over 100 prisoners nearly a century ago, there are about 340 defendants living three to a cell. In a space of just over 100 square feet three men have to spend 23 hours a day, apart from the occasional solicitor's or social visit and the brief intervals for 'slopping out' or collecting food. There are no communal rooms for association and recreation. The toilet facilities in that particular wing consist of only four water closets for 340 men and plastic chamber pots in each cell. There are four showers and a shower is allowed to each man only weekly.To lock men up for 23 hours a day, three men to a cell, is a deplorable way to behave, whoever they may be. Let us remember that all these men are defendants awaiting trial, and that a large number of them will be acquitted at the end of the day. Indeed, 40 per cent. of them will either be acquitted or given non-custodial sentences. The crime of society in putting them into those conditions is even more serious. It is absolutely deplorable that tonight, as we debate the Bill in the Chamber, there are 1,000 men in Brixton Prison, most of them defendants awaiting trial, living in deplorable and antiquated conditions.
I welcome the Bill although, in a sense, it is unnecessary. I agree with the hon. Member for Chislehurst (Mr. Sims) that it is unnecessary, but at least it recognises that there is something wrong. The Bill is a sign of earnestness on the part of the Government in thinking that something must be done to avoid treating men in this deplorable way.
The Bill needs improvement. It is necessary that Schedule 1 be looked at again. I am glad that the Minister of State has indicated that that will be proposed in Committee. If we are to have it I should prefer it to be reworded to provide for a high probability.
512 It must be clear that, when considering bail and whether a defendant will abscond, the onus of proof must be on the prosecuting authority. It is not for a defendant necessarily to prove the matter, although he will want to bring forward the best possible information, either directly or through his solicitor. The onus must be on the prosecution to show that the defendant is a person who is likely to fall within the categories set out in paragraphs (a), (b) and (c) of the schedule.
It is important that the prosecution should be expected, if it is opposing bail, to show clear evidence that the court may expect the defendant to behave in the way that is suggested.
That brings me to a key point about the whole matter of the granting or denying of bail. Unfortunately, the police, in particular, and, to some extent, the Director of Public Prosecutions, still take the view, despite the attitude that has been taken by the Secretary of State for the Home Department and successive Lord Chancellors that bail is the right of all Englishmen, that the denial of bail is a useful weapon in their pursuance of an individual whom they wish to make into a convict. The police, after all, have regarded themselves as having a duty to get convictions. It is not part of their responsibility to try to see the defendant's point of view. The police identify a person whom they consider to be a criminal, and all their efforts are directed towards obtaining a conviction.
§ Mr. Mark Carlisle (Runcorn)
I do not think that the right hon. Gentleman's last remark should go unchallenged. It is not correct to say that it is the duty of the police to get convictions. Their duty is to bring people to trial. It is not the duty or concern of the police to consider the outcome of the trial.
§ Mr. Stonehouse
That was a facile interjection. First, I did not say it was the duty of the police to get a conviction. I said that, unfortunately, the police often regard it as their duty to get a conviction, which is another position altogether.
The police, unfortunately, have an attitude that it is their responsibility to win the game at the end of the day. This is an unfortunate aspect of the way in which the police go about their work. It 513 was demonstrated the other day by no less a person than the Commissioner of the Metropolitan Police, Sir Robert Mark. Sir Robert made a speech in which he said, revealingly, that 50 per cent. of criminals are acquitted and get away with it: he thought that was deplorable.
That remark reveals that Sir Robert Mark has set himself up as a higher court of appeal. He considers all those individuals within the 50 per cent. who have been acquitted to be criminals who have got away with it. That attitude of mind must be deplored.
It remains true, despite the interjection by the hon. and learned Member for Runcorn (Mr. Carlisle), who speaks with a certain amount of experience of one aspect of the administration of the law, that in many cases the police regard their job as getting a conviction. If they fail to get a conviction, they feel that somehow they have lost out. That is why the police often go about their job by suppressing information that may be of advantage to a defendant at his eventual trial. The police often prevent a defendant from having contact with witnesses who might be advantageous to him by opposing bail so that the defendant is safely out of the way in prison.
When I was in Brixton Prison I met many people who, like myself, had been denied bail. Some of them suffered severe penalties as a result of that denial. The denial of bail to a man or a woman—certainly to a man who is the breadwinner for his family—is a serious condition. If he is eventually acquitted nothing can take away the stigma of having been in prison for even a short time. His neighbours will know something about it. If he is acquitted they will still think that he is a bad man because he would not have been put into prison unless there was something bad. Most of them will probably not even know that he has been acquitted, but they will know that he was locked away for a time. Furthermore, the employer of a man who is denied bail will get to know about it very quickly, and that man may lose his job. He will need a very understanding employer to allow him to be away for months on end and then come back to his job after he has been in prison.
514 In the most serious cases wives have left their husbands because they have been in gaol for so long. Fortunately, those examples are rare, because most wives are loyal to their husbands when they are in prison. Indeed, they go to extreme pains to travel long distances to visit them. When a wife gets to the prison where her husband is on remand, she may discover that she has only half an hour, or even less, to see him, in an overcrowded visitors' room where it is almost impossible to have any private conversation.
Any man who is denied bail and goes into prison, even for a short period, pays a very big price. I met men in Brixton who had been denied bail for over a year. I heard of several who, at their final trials, were acquitted of all charges against them. Yet for those men there is no compensation. Society has made them pay a price that they should not have paid, but they cannot expect anything back from the society that has done this terrible thing to them.
We should not only introduce the concept of the presumption of every Englishman to have bail, but change the practice of the police and prosecuting authorities of automatically opposing the granting of bail to suit their own purposes. I hope that, through every possible measure of education, the DPP, prosecuting authorities, the police and everybody involved in the bringing of charges will understand that they should not come to the court and automatically oppose bail, but that they should get into the spirit of the Bill and bend over to ensure that the presumption of bail is in their minds, as well as in the Bill.
There are many cases where men are denied bail at the first hearing in the lower court, but subsequently obtain bail, after a week or so, as a result of an appeal to a judge in chambers or, indeed, when they appear at the commital proceedings. If it is right that a defendant should get bail as a result of an appeal to a judge in chambers or in some other way, it should be presumed that it is right that he should get bail at the first hearing of the charge or charges against him.
I should like to draw the attention of the House to the importance of correct procedures being adopted the first time 515 a defendant appears in the lower court. A remarkably interesting article, written by Mr. Michael King, appeared in The Guardian on 11 th July 1972. Mr. King drew from the report produced by Mr. Michael Zander as a result of research conducted by the London School of Economics with 134 prisoners. Mr. Zander and his team found that almost two-thirds of those who had asked to speak to a solicitor after their arrest were denied that right by the police.
Going back to the first experience of an individual when he is arrested and his wish to obtain bail at that stage, it is vital that he should have access to a solicitor for assistance with his application for bail at that critical stage in the whole process. As Michael Zander and his researchers discovered, of those who asked to see a solicitor, two-thirds were refused. Therefore, at that critical first stage they had little chance of getting outside assistance in the preparation of their applications for bail. They appeared in the magistrates' court having had no contact even with their families before their applications were heard. When cases are heard in the magistrates' court, invariably the only information available to the court is that produced by the prosecuting authority or by the police.
As I said, in too many cases the police have a vested interest in denying bail to a defendant. They are not interested in bringing before the court the full facts. Therefore, at the first stage it is vital that an individual who is arrested should, as of right, have access to a solicitor. I think that an individual who is arrested should, within the first six hours after his arrest, have the right to telephone to his family, friends or a solicitor, so that someone on the outside will know that he is under arrest. In many cases the persons arrested are kept virtually incommunicado by the police in police cells—sometimes for several days. Often their families do not know where they are and they have no opportunity of getting any help in preparing bail applications for when they eventually appear in court. It is important that when the court first considers a man's case for bail it has information about him, and that that information should be provided by the defendant and his solicitors by allowing him access to outside contact.
516 I entirely agree with the hon. Member for Chislehurst about the importance of completing bail information forms, but I do not agree with him that the probation department should be absolved from responsibility in this connection. I speak as a former assistant in a probation department. I believe that no probation official worth his salt would reject the opportunity to assist a defendant coming before the court by providing objective information about that person's circumstances. I do not disagree that there should be an opportunity for voluntary social workers, properly trained also to give assistance in this connection.
I hope that when the magistrates' court is first hearing an application by the prosecution to deny bail, with the onus on the prosecuting authority to prove whatever is laid down in Schedule 1 as the conditions for opposing the application, there will be the fullest opportunity for information about the defendant to go forward at that stage, instead of being deferred to another occasion, because if there is a deferral even for a day or two, the defendant will find himself locked up in Brixton, or in some other remand prison, and I am sure that it would be the wish of the House that wherever possible even that short period of incarceration should be avoided. In fact, if there has to be a delay—an hour's delay, a day's delay or even two days' delay while the information is being obtained—it would be better for the accused person to be kept in a police cell for that period rather than be sent to Brixton.
I take strong objection to the provision in the Bill creating a new criminal offence. This is a backward step rather than a step forward. Indeed, it would be better to do without the Bill than to include this provision in Clause 6, because it will bring yet another offence on to the statute book. If persons abscond from bail, this provision will have the result of putting them through the hoop again after they have stood up to the charges of which they were originally accused.
I believe that if a person has jumped bail and comes forward to the court, either voluntarily or because he has been discovered by the police and apprehended to stand trial on the original offence of which he is accused, that, together with the extra sentence that the judge might impose, will be sufficient penalty, and that 517 he should not be subjected to the hazard of further criminal proceedings, which will only have the effect of cluttering up the courts.
If someone is acquitted of the original offence of which he is accused, even though he had jumped bail during the intervening period, it would be deplorable to drag him back, he having already suffered a great deal of anguish as a result of being subjected to trials on charges of which he has been acquitted, and subject him to yet another trial on a charge of absconding from bail.
There is another objection to this provision, and that is that it will not be a deterrent, because any individual who is considering jumping bail will not stop to say to himself "I cannot do that: I cannot jump bail, because at the end of the day I might face another charge". He is already facing charges which he regards as so serious, or so stupid, or because he has had a psychiatric breakdown or something, that he is convinced that he has to jump bail, and the fact that there is a criminal charge involved in the action of jumping bail will not be a deterrent to him in that frame of mind.
I do not think that that clause is of any value, and I do not know why it has been introduced into the Bill. I suspect that it is here only as a sop to the police and others who may object to the improving of the bail conditions, and I very much hope that in Committee it will be removed from the Bill.
I now propose to refer to the further steps that could be taken by an accused person to obtain bail if he were denied it in the lower court. There is a method by which an individual, or his solicitor, can appeal to a judge in chambers, but this is a cumbersome procedure, and I suggest that considerattion should be given to a proposal that has been put forward by prison officers themselves. They suggest that the judge should visit prisons to hear appeals for bail from remandees, rather than have the cumbersome business of the person concerned, or his solicitor, going to a judge in chambers. This proposal would be far more convenient and a far better way of dealing with the situation.
I should like to see a change in the practice of dealing with sureties. I was glad to hear the Minister say that the onus will be on the court, not merely 518 on the police, to consider whether the sureties are acceptable. I hope that in practice this will mean that more sureties will be acceptable than has been the case heretofore. In too many cases a defendant has been granted bail only after many attempts, either because sureties have been difficult to obtain or because they have been brought forward but rejected by the police, and presumably sureties could be rejected by the court if the same attitude were adopted in future as has been adopted up to now. I greatly admired the way in which the prison staff at Brixton, in particular, applied themselves to the job of assisting remandees to get in touch with possible sureties. I hope very much that that kind of assistance can be extended, so that prisoners who are trying to get sureties receive every possible assistance in that regard.
I hope, too, that another aspect of this matter can be considered, and that is the length of time that accused persons have to await trial when they are denied bail. There is a provision in Scottish law that if an accused person is not brought to trial within, I think, 110 days, he must be released. That aspect of the administration of justice could well be adopted in England, because in far too many cases persons are denied bail, sometimes for good reason, and are then kept in prison for 18 months or even longer before the trial takes place. I would hope there can be a speeding up of the hearing of cases where the accused person has, for one reason or another, been denied bail.
Although I do not think that all the provisions in the Bill are satisfactory I welcome it as a small step in the right direction. I particularly hope that the change in attitude that it shows on the part of the Home Secretary and his Department will be mirrored in the attitudes of those who have other responsibilities in the administration of justice.
§ 7.31 p.m.
§ Mr. Robert Kilroy-Silk (Ormskirk)
There has been a great deal of criticism from some hon. Members about the fact that we are having this Second Reading debate in the Chamber. Yet had it not been for the rather strange and, some would say, somewhat unfortunate circumstances of earlier this afternoon the Bill would have gone to a Second Reading Committee.
519 The hon. Member for Bury St. Edmunds (Mr. Griffiths) came into the Chamber in a great huff, after the Minister had started speaking, complaining that the Bill was being taken today. He might have joined me and some of my other hon. Friends in putting pressure on the Lord President and the Home Secretary to make sure that the Bill was read on the Floor of the House. He complained about the Bill being given a Second Reading today. Had it not been today, had the Bill gone to a Second Reading Committee and had he been observing what was going on, he might have been able to consult his paymasters and to make later the kind of comments he wanted to make in defence of the police. But he stormed out in a great petulant huff, which is not exactly the kind of attitude or demeanour which one would expect from an hon. Gentleman who claims to represent law and order and to speak for the police.
§ Mr. Kilroy-Silk
If I may finish this point first. Indeed, had the hon. Member for Bury St. Edmunds been before a juvenile court, his behaviour might have been described as meriting the granting of an unruly certificate.
§ Mr. Percival
I am obliged to the hon. Gentleman for giving way. It is a pity that he did not do so a moment ago. He ought to know that there was no question of the Bill going to a Second Reading Committee. That procedure would have been objected to from this side of the House and the Bill would have been dealt with on the Floor of the House.
§ Mr. Kilroy-Silk
I accept that. I am glad the hon. and learned Gentleman's party would have taken that attitude, but I wish I had known about that earlier. My hon. Friends and I would have been grateful for assistance in twisting the Whips' arms.
One of the main complaints by the hon. Member for Bury St. Edmunds was that not sufficient time had been given for representations. But that is not the case. The Bill was mentioned in the Queen's 520 Speech and it has been in the other place. Dozens of documents have been issued for some considerable time, such as the joint policy statement from NACRO and the Howard League. Many other organisations seem to have taken this place seriously enough to find out what was going on here and to make their representations. If the police are as concerned as appears from their public statements, they should have taken some appropriate action to ensure that their views were put across. Indeed, they were, for the hon. Gentleman knows full well that we have heard of nothing but the complaints of Leslie Male and his cohorts about this Bill and many other things proposed by the Government or proposed and amended by successive Governments in the past.
§ Mr. Eldon Griffiths
On a point of order, Mr. Deputy Speaker. A few moments ago the hon. Member for Ormskirk (Mr. Kilroy-Silk) said that I came into the Chamber complaining that I did not have time to "consult my paymasters." I would ask you to tell him to withdraw that imputation against me.
§ Mr. Kilroy-Silk
Yes, I did, Mr. Deputy Speaker, but if it was incorrect, of course I withdrawn it.
§ Mr. Kilroy-Silk
Yes, Mr. Deputy Speaker, if it were incorrect.
I also understand that the Police Superintendents' Association has issued a draft policy statement on the Bill. Indeed, my hon. Friend the Member for Stockport, North (Mr. Bennett) has it in his possession now. The hon. Member for Bury St. Edmunds is so keen to represent the police that I would have thought that he would be a little more careful in finding out what they think rather than waiting for them to come to him. Some hon. Members on my side of the House have managed to do that very effectively and very well.
So far, with the exception of the hon. Gentleman's petulant tantrums, this has been an interesting and well-balanced 521 debate. On the whole there has been a welcome, conditional in some instances, for the Bill and its provisions.
It is difficult to strike the fine balance which is necessary between the inestimable value of the liberty of the subject and the clearly established and accepted right to protect society from those who would commit offences against it. I believe that the Bill goes a long way towards enhancing the liberty of the subject, although its provisions, in certain respects, are perhaps better dealt with in Committee. Perhaps it is too cautious in its urge to protect society rather than the liberty of the subject with which it is concerned.
However, I welcome the fact that we are debating it today and I welcome the Home Secretary's and the Government's commitment to it. It is sad that we should even have to debate this issue at this juncture. It is a sad commentary on our society that so many people are incarcerated in prison establishments. I am thinking not just of the many found not guilty or given non-custodial sentences, but of those who, under our present law, are found guilty of offences which many of us would regard as inappropriate for imprisonment. I am thinking of vagrants, drunks and even prostitutes, none of whom is in any sense redeemed, reformed or rehabilitated by a dose of imprisonment.
It is sad that so many of them are in prison when we have almost an all-time high in the prison population and there are plans for further extensions to existing prisons as well as for new prisons. We expect the prison population to rise to about 50,000 in the early 1980s, at a time when we are trying to devise and to put into practice means for reducing the prison population and cutting public expenditure.
It is also an extremely sad fact, which we must take into account, that so many of those people who are put into prison are subsequently found to be not guilty, have their cases not proceeded with or are given non-custodial sentences. Of the 64,981 persons remanded in custody in 1974, 2,101 were subsequently found not guilty or did not have their cases proceeded with and 29,015 were given non-custodial sentences. Only 26,000-plus were imprisoned after conviction.
522 It should give considerable cause for concern not just to those who have the liberty of the subject and his rights under the law uppermost in their minds but to any decent law-abiding citizen that more than 50 per cent. of those put in prison turn out to be people determined subsequently by the courts never to have needed a prison sentence. That is a blight on what is otherwise a civilised society.
It is, of course, true, as the Minister of State said, that the numbers on remand in this country, per head of population, or by any other series of indices which one takes, are lower than those of most comparable Western civilisations. But this is not a reason for complacency on the part of those of us who wish to improve our system of justice and our penal system and to extend the liberty of the subject even further. I do not accept as a reasonable or convincing argument that one can point to some other country where things are worse than they are here as a reason for not improving things in this country. We may lead the world in this area, bat let us continue to lead the world by (living a further example.
But, it is not the figures that are important. The right hon. Member for Walsall, North (Mr. Stonehouse), who now sits for some nationalist party or other, has given us a clear account of the personal effects of imprisonment. We are dealing with people—people who are affected psychologically, emotionally and financially by imprisonment. We have all bandied about a number of figures. Few of us have the capacity to speak with personal experience. Some of us have spoken of cases known to us personally, but the effects of imprisonment, certainly on those who are subsequently found not guilty or given a non-custodial sentence, are traumatic.
They have already been punished, they have already lost earnings, for which they will receive no compensation. Hardship has been inflicted upon their families, they have probably subjected themselves and their families to great psychological and emotional turmoil. As is the case in many instances known to me, they may even have lost their homes as a result of being in prison, although eventually found not guilty. They may have been evicted for failure to pay rent which they could not pay because they were 523 in prison and could not earn A whole host of social problems follow from the simple refusal of bail.
Anyone who knows deeply and clearly about this kind of problem cannot but welcome any attempt to ensure that only those who are a clear danger to society should be deprived of their freedom until they are convicted. But we are dealing with a large number of people who, under our present system of justice, are innocent until they have been convicted—and few of them have been treated as such.
It is not only a question of hardship—financial, emotional, psychological and social—which is caused to the individual and his family and relatives. His reputation is also severely affected. The fact that he is subsequently found not guilty is neither here nor there to the general public. They know that he has been inside and they feel that there is no smoke without fire. We have a great responsibility to bear that in mind when discussing the Bill.
Other disadvantages apply to someone who is remanded to prison to await trial. He is at a severe disadvantage in preparing his case. He does not have the same kind of ready access to his solicitor. He may indeed be geographically isolated from both his family and his solicitor and may not have the physical communication with his advisers to help him to present his case. He cannot brief his friends in the simple operation of tracking down witnesses and persuading them to appear on his behalf. These are some of the disadvantages and side effects of this system.
There is also the problem of overcrowded prisons. We have heard of the Home Secretary's wish to reduce the prison population to the "irreducible minimum". The untried inmates on remand make up a considerable proportion of the normal certified prison population. I would not wish to exaggerate this, but on any one day there are between 3,000 and 5,000 people on remand awaiting trial. The last figure that I have been able to obtain shows that the average daily remand population in 1974 was 5,081. The latest figure for this year was supplied to me by my hon. Friend, but because of the speed with which this debate was entered into today, 524 I have not had access to all the figures that I have been assiduously collecting in the past few months.
At Brixton, the certified normal accommodation is for 649 prisoners. In addition to 222 convicted prisoners, there were 714 untried inmates on 15th February this year. At Leeds, the total number of inmates is 1,009, including 180 untried inmates—yet the certified normal accommodation is for 592. One could go on giving examples of local prisons as well as remand centres.
No one should be remanded in custody unless he has first been offered legal representation. That is something that we should discuss in Committee and perhaps put into the Bill. There should be a clear offer of legal reresentation to any one, even as a result of these changes, before he is remanded in custody.
Surveys have shown that a higher proportion of those who are legally represented get bail against police opposition. The solicitor can often offer information to the courts which is subsequently sought as a result of the social or psychiatric inquiry. Perhaps a court asks for information, and the absence of that information might be given as a reason for refusing bail. Those who are legally represented are generally more successful. On such a serious issue as depriving a technically innocent man of his liberty, we must ensure that he is adequately represented.
I support the presumption of bail for social, psychiatric and medical remands. Speaking from memory, I believe that there were about 12,000 remands into custody for psychiatric reports in 1974. That has always seemed to me a bizarre way of proceeding. I did not know that it was considered to be appropriate to send a person to prison to see a doctor, but that is what we are doing. Nor would I have thought that a prison was the proper environment in which to carry out a psychiatric, still less a social, inquiry. Yet we send many people to prison establishments for such reports.
Surveys also show that two-thirds of those remanded for psychiatric, social and medical reports are eventually given non-custodial sentences. So we are putting away 12,000 people a year for these reports and subsequently two-thirds are 525 given non-custodial sentences and therefore should not have been in prison in the first place. That is a slander on our penal system and something which the Bill must remove.
The Advisory Council on the Penal System, in its report on young adult offenders, argued that young offenders should not even be remanded to prison for psychiatric reports. I should think that many such observations would be invalidated simply because of the unnatural nature of the surroundings and the superficial and artificial environment.
I should also favour a presumption of bail pending appeal. There are arguments either way and there are difficulties in imposing such a presumption. But it is known that many offenders, particularly those convicted of petty offences, do not apply for bail and are deterred from appealing simply because they have been given light sentences. They accept a light sentence rather than the remand in custody which would automatically follow their attempt at appeal. I am sure that many such people are prepared, whether guilty or not, to take the consequences of a relatively short period of imprisonment instead of the longer one which would be involved if they appealed.
Therefore, there should be a presumption of bail pending appeal after conviction but before sentence.
I cannot see why the criteria listed in paragraphs 1 and 7 of Schedule 1 cannot also apply to those who are convicted but are given bail pending sentence or those who are appealing and given bail. I do not accept the interpretation of Schedule 1 made by the hon. and learned Member for South Fylde (Mr. Gardner).
The same criteria for those who cannot get bail now apply to those awaiting sentences and meet all of the requirements. With other hon. Members, I take great offence at the creation of new offences in a Bill the aim of which is a reduction in the prison population. I cannot see the necessity for, or the logic of, the new offence of absconding from bail. That will not act as a deterrent. Few will abscond anyway, and the fact that there is an offence of absconding from bail will not deter people from absconding. If somebody absconds, that is taken into account when he is subsequently dealt with.
526 We are dealing here with such people as drunks and vagrants. They are the people who do not turn up when they are supposed to turn up. Those who abscond and are later caught are those who should not be imprisoned and for whom the Criminal Justice Act, when the Secretary of State has sufficient resources, will provide. Drunks and vagrants abscond for a variety of reasons, few of which have anything to do with a wilful attempt to disobey the law. To penalise them with a further term of imprisonment or to impose upon them a fine when they cannot even find five bob to buy the wine that one can obtain in Liverpool is a nonsense and makes a mockery of the law. It may be possible to delete that part of the Bill in Committee.
I wish to fly a few kites. Would it not be appropriate for compensation to be paid to those who have been refused bail and who are subsequently found not guilty? They will have already suffered a great deal—loss of liberty, the disruption of family life and financial loss. The courts might take matters more seriously if they had to find compensation for those who are wrongfully imprisoned. Compensation is paid in France and Western Germany, and perhaps we can do the same. It might also be appropriate to provide legal aid for bail applicants to justices in chambers.
The remand into custody of school children between the ages of 14 and 16 worries me. One should not let the subject pass without talking about such remands in custody. No one would suggest that we should put school children into prison. There is no legal requirement or power to put them into prison when they are guilty, but we imprison them when they are innocent and on remand. In any one year, up to 6,000 school children pass through our penal institutions, many of them adult prisons.
There has been a White Paper in response to the Expenditure Committee's Report on the Children and Young Persons Act. It deals with the remand of schoolgirls of 14 to local adult prisons but leaves aside the problems of girls of 15 and 16 and of boys of 14 to 16. It deftly smoothe over the fact that remand centres are prisons. They have cells and bars and the strict regimentation which applies to local adult prisons.
527 It is intolerable that we as a society can, almost without thought, put so many of our school children into adult prisons. What is worse, so many of them are subsequently found not guilty or given non-custodial sentences. A total of 205 boys and girls were detained in local adult prisons in 1974. I inquired how many of those were subsequently found not guilty or given non-custodial sentences. The House must remember that we are talking about school kids in adult prisons rubbing shoulders with real criminals and other worldly characters. I found that 75 per cent. of the girls and 50 per cent. of the boys were found not guilty or given non-custodian sentences. Yet they had already, in effect, served prison sentences, with all the damage that that can do to their mental state and future development. What kind of bitterness and resentment must that create within them against a society which treats them so callously and cruelly?
I cannot see the reason for the absurd Schedule 1(2) which reads:The accused need not be granted bail if the court is satisfied that the accused should remain in custody for his own protection or, if he is a child or young person, for his own welfare.Are we saying that we shall not grant bail but we will put into prison, for his or her own welfare, a child or young person? Is that what that schedule says? By any stretch of the imagination I cannot see how one can so torture the English language as to put a child or a young person into prison for his or her welfare.
I have spoken longer than I intended, but I welcome the Bill, which closely matches that which many hon. Members expected and hoped for. It manages to draw the fine line between the liberty of the subject and the defence and protection of society. That is a fine balance which we must tread carefully and warily. Parts of the Bill need to be tightened if it is to revolutionise our attitude to innocent people charged with offences. I warmly support the Bill and I hope that it gets its Second Reading and passes quickly through its remaining stages.
§ 7.59 p.m.
§ Mr. Patrick Mayhew (Royal Tunbridge Wells)
I listened with much admiration to what was obviously the fruit of considerable research by the hon. Member 528 for Ormskirk (Mr. Kilroy-Silk). It is not research that I can match. Perhaps there will be an advantage in that my speech will be considerably shorter.
I join the hon. Gentleman to the extent of underlining what he said about the evil of committing young people to prison. I am certain that we still underestimate, although we are much better at the matter than we were, the harmful effects upon young people of having at so impressionable an age that experience of prison life.
I cannot help feeling a little ashamed for the House that at about six hours' notice we are debating what is agreed on all sides to be one of the more important measures in recent years in this area. I am also slightly ashamed of the necessarily superficial way in which my speech will deal with the few issues that I want to touch upon. I wholly support what the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) said about that.
It is rather trite now to remark that the decision the House must take on the question of the circumstances in which bail may be granted or withheld is an exercise in balance, like most decisions in politics. We must balance the need to preserve the liberty of the individual and the need to secure the safety of society.
I listened with great attention to what the right hon. Member for Walsall, North (Mr. Stonehouse) said about conditions in Brixton Prison. I believe that we are primarily discussing a matter of principle, but the importance of that issue of principle cannot but have been underlined in the mind of every hon. Member who heard what the right hon. Gentleman said about the conditions in which men on remand live in Brixton Prison. The hon. Member for Ormskirk spoke of other prisons throughout the country. With that practical evidence in our minds, we should approach with the greatest care the deliberation of the circumstances in which bail should be withheld.
For most people the severity of the personal catastrophe of being incarcerated without trial is so great that it must be right that the presumption should be in favour of bail being granted. Therefore, I welcome the fact that the Bill spells 529 it out clearly. I know that in part this was done in the 1967 Act, of which my hon. and learned Friend the Member for South Fylde (Mr. Gardner) spoke. But it related only to the more minor offences, or perhaps it is more accurate to say that it did not relate to the more serious offences or to bad offences. I welcome the fact that the Bill is all-embracing in criminal matters.
We have not heard very much today about the circumstances in which it is right, and the considerations which make it right, for magistrates to withhold bail. This short debate has been all about the catastrophe represented by somebody going into prison without a trial. I do not wish to pour cold water—
§ Mr. James Dempsey (Coatbridge and Airdrie)
Will the hon. and learned Gentleman comment on the circumstances in which magistrates in England grant bail but insist that if the sureties are Scots people they must travel to the nearest English town to provide that bail?
§ Mr. Mayhew
I do not want to prolong my speech by embarking upon that topic.
Whatever criterion for the granting or withholding of bail the House thinks it right to adopt should be genuine. It should not be applied cynically or in a manner which makes it impossible to fulfil.
Although we have not heard much about them in this debate, there are circumstances in which the need to protect the public makes it right that bail should be refused. We need only cast our minds back to highly-publicised cases such as a man granted bail after particularly notorious offences for which he has been arrested but not yet tried. He subsequently commits another offence and there is great public indignation. One understands why, and sympathises with it. Time and again the cry goes up, also well-publicised, "Why on earth did they let him out?"
That is the dilemma which magistrates face, and it is an important matter. Few things do more to undermine public confidence in our administration of justice than an instance of that kind. We are not so confident in the stability of our administration of justice or many other institutions that we can afford to 530 have them undermined gratuitously. We should not lose sight of the fact that there are circumstances in which it is right to withhold bail.
That brings me to the passage in the Minister of State's speech in which he said that the Government proposed to move an amendment to reinstate the word "probable" in paragraph 1 of Schedule 1. That schedule deals with exceptions to the right to bail. It says:The accused need not be granted bail if the court is satisfied that there is an unacceptable risk that the accused, if released on bail … would—I believe that the wording is right now, or very nearly right. It is certainly much better than it was when it included the word "probable", as it did when the Bill started its passage through Parliament.
- (a) fail to surrender to custody, or
- (b) commit an offence while on bail, or
- (c) interfere with witnesses".
The important point is that the concept of unacceptability, the forming of an unacceptable risk, enables the court to take into consideration the seriousness of the offence with which the man is charged and of any offence the court may think it likely he will commit if he is let out on bail. That is why it is better than the formula of "probable" and of "a serious risk". If it is said that there must be proof that it is probable that he will fail to surrender to custody, it is virtually impossible for magistrates to satisfy themselves of that. Therefore, they will be disentitled to withhold bail.
That would be a logical thing for the House to legislate if it took the view that there were no circumstances in which the public interest required bail to be withheld, but, for the reasons I have advanced, that would not be a realistic position to adopt. Therefore, I hope that the Government will think again about their intention to reinstate "probable". I know from another field that the Minister of State is a fairly determined operator when he has made up his mind. I hope that if the Government press on with their intention the amendment will be rejected.
The hon. and learned Member for Hackney, North and Stoke Newington welcomed, as I do most warmly, the proposals for the extension of legal aid. He said that he understood that there were 531 economic considerations which made that a difficult matter. In so far as economic considerations are relevant to the question of legal aid, let it not be forgotten that it is very expensive to keep a man in custody. It may well be a very good bargain, if one looks at the matter solely with economic considerations in mind, to extend legal aid in every case where bail is in issue.
I welcome the clear statement in the Bill that there is a presumption that a man shall have bail, but it should be remembered that the administration of justice is a mortal institution and therefore one which will make mistakes. It is the job of everyone concerned with it to try to keep them to a minimum. I hope that magistrates and judges will not be deterred by the possibility of making a mistake, and of injustice resulting, from carrying out the other part of their duty—to secure in all appropriate cases the protection of the public.
§ 8.10 p.m.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
I am sorry that the hon. Member for Ormskirk (Mr. Kilroy-Silk) has left the Chamber, because I wanted to reply to some of the aspersions that he sought to cast. In his absence, I shall confine myself to a number of brief observations on the reckles and foolish charges that he made at the beginning of his speech.
§ Mr. Dempsey
On a point of order, Mr. Deputy Speaker. The debate on the question of bail has important consequences for Scots who have been apprehended in English courts pending bail, because Scottish sureties are not allowed to pay that bail in Scottish police offices—
§ Mr. Dempsey
The point of order is as follows: am I to take it that the debate is being wound up following the present contributor, or will it be possible to catch your eye a little later?
§ Mr. Deputy Speaker
For the information of the hon. Member, I must inform him that the Bill does not apply to Scotland. Furthermore, the hon. Member for Bury St. Edmunds (Mr. Griffiths) is not winding up. The debate is exempted 532 business, and the hon. Member for Coat-bridge and Airdrie (Mr. Dempsey) can speak until two or three in the morning if he so desires.
§ Mr. Griffiths
There are some hon. Members in the House, including you, Mr. Deputy Speaker, whose rebukes I take seriously, but the hon. Member for Ormskirk is not among them. He knows a lot and talks a lot, but I am afraid that in his human relations in this House he displays a moral arrogance, a lack of humour and a carelessness for the truth, which will no doubt take him far on the left wing of his party, but will not stand him well among the sensible men in the Labour Government or, indeed, in the House as a whole. I only regret that he is not present in the Chamber, because I wanted to say these things to his face.
I wish to deal with three items, all of which begin with the letter "p". There is first a procedural point, secondly, a point of perspective, in regard to the Bill as a whole and, thirdly, a number of matters relating to the police.
On the point of procedure, I believe that it is an outrage to Parliament and to those who will be affected by the Bill that this measure has been brought on without notice and at the end of a long wrangle about another matter. As a result hon. Members have not been able to prepare themselves for this debate with the material that they need.
Furthermore, those who are affected by the Bill have not been able, because of the short notice, to bring to the attention of their parliamentary representatives material of significance—material that I am sure would have enriched our debates and, indeed, may have led the Government to reach different conclusions. That is wrong, and I hope that it will never happen again. If the Government run into a procedural muddle on one subject, that is no reason for their prejudicing debate on another 533 subject, on which they have given inadequate time for preparation. That attitude has denied certain people access to their members of Parliament, and as a result their views may not be made known during this debate on an important Bill.
I turn to the question of perspective. I recognise the value of the Bill. I shall support its Second Reading. But I believe that the priorities are all wrong. In short, I believe that more important matters dealing specifically with crime should be before the House today. This Bill seems to me to demonstrate that Parliament is getting out of touch, and certainly out of step, with public opinion and the true wishes of our constituents.
We find the same story running through nearly all our recent criminal legislation. It is the story of pressure groups, skilled propagandists and special pleaders. These groups appear to get their way despite the wishes of the vast majority of our people.
We have only to look back to what has happened to criminal legislation in recent years. What happened when Parliament abolished the death penalty? That took place not because of the wishes of the majority but because a minority convinced the House that it should be abolished. How did it happen that Parliament agreed that criminals should be paroled after serving a small proportion of their sentence? Was there a vast public demand for that course? I doubt it very much.
We now see the mounting campaigns aimed at lowering the age of consent in sexual cases, liberalising drug laws, irrespective of the dangers to young people, and permitting homosexuals to indulge themselves in public places. There is agitation to liberalise the sale and supply of pornographic literature and to permit the showing of pornographic films, and, indeed, to spend public money on introducing such material into every home in the country. The ordinary man see these things taking place and asks himself "Why is it that Parliament can find time to debate these strange matters but can find no time to tackle the real problems of crime?" That is why believe that the present Bill is out of step, and, indeed, out of tune, with public opinion.
How is it that today we can find time to deal with the Bail Bill when, at the same time, we have done nothing in a 534 parliamentary sense to discuss the conclusions of the Criminal Law Revision Committee, which has recommended tightening up the trial procedures to make them less of a game, if I may so express it, between lawyers and more of an inquiry into the real truth? And how is it that we can find time to deal with this Bill and yet take no action to tighten up the legislation on firearms, particularly that relating to shotguns? There are many aspects of law and order which are of concern to our constituents, but I doubt very much whether the Bail Bill is the main matter in their minds.
I now wish to say a few words about the views of the police on this subject, and particularly the views of the Police Federation, with which, as the House knows, I have a connection. The police have a right to have their views heard on these matters, because they are in the front line. They have probably more to do with questions of bail than do any members of this House. It is the police who have to carry the scars of battle. I must tell the House that 12,000 policemen are injured every year, and that the police have to deal with 2 million indictable offences. It is the police who stand between violence and anarchy and the public. Therefore, what they have to say about this Bill is most important.
I hope that I can carry the Minister with me when I remind the House that the policeman sees the battered child not in the antiseptic atmosphere of a court of law but in the flesh or, indeed, in the blood. He sees the effects of crime on human beings, the drunken savagery that will leave many people, in any one year in our country, blinded or maimed, and children mutilated. The police see this in the flesh. Perhaps that conditions their attitude to what happens when violent men are brought before the law. All too often the police believe that there is an imbalance between the human misery created by crime and the way in which the offender is dealt with, by being bailed, under-sentenced or paroled too early.
In accepting the philosophy of the Bill I agree absolutely with the arguments and amendments made in another place. Specifically, I believe that the courts must be able to continue to refuse bail wherever, after hearing the prosecution 535 view, they believe that there is a significant risk—not just a a probable or unacceptable risk—of violent men being released to commit further violent offences. If there is any significant risk, it ought to be possible for a court to deny bail.
Equally, if there is a significant risk of an arrested person interfering with a witness by intimidation, once again the court ought to be entitled to refuse to grant bail.
It must also be right for the court to have regard to the seriousness of the offence. This is an amendment that was inserted in another place. As I understood the Minister's speech, the Government have no intention of altering that.
§ Mr. Griffiths
I am glad that the Minister has intervened, because I did not entirely understand what he had in mind. No doubt in Committee the hon. Gentleman will be advancing his arguments for this change. I shall need to be convinced about this.
Let me put two specific examples. Suppose a woman is charged with having brought a rabid dog into the country. Suppose the charges against her require a good deal more evidence to be procured, and the woman seeks bail. Is the Minister satisfied that using his terminology of "probable" and the amendments that he proposes, it would be possible to deny bail to such a person if there were a risk that during the period of bail she might bring in another rabid animal? The Minister will understand the importance of taking every conceivable precaution against a foul disease of this kind. The hon. Gentleman must satisfy the House that in his own judgment the amendments that have been made and that he proposes will give adequate protection.
§ Mr. Andrew F. Bennett
The hon. Member is almost suggesting that whenever there is a risk that anyone may break the law he should be locked up before he can do so. Surely that is a completely new principle.
§ Mr. Griffiths
With respect to the hon. Gentleman, I did not say that. I said that if there is a significant risk of violence being committed while on bail, and if there is a significant risk—I am using the example of rabies—of a further offence being committed of such a serious nature that the court ought to have regard to the possibility, the Minister must satisfy the House that his amendments will take care of the situation. Rabies is a good example, because we all know the terrible nature of the disease. It must not be possible for anyone to be released on bail if there is the slightest chance that he will again bring a rabid animal into the country. I hope that the Minister will be able to say that he is satisfied that his wording will cover that case.
The other example concerns State security. It may be that it would be wiser not to go into details. Is the Minister satisfied that his proposed wording will ensure that a court will be able to deny bail when evidence is put to the court by the police that during the time on bail State security may be jeopardised by the actions of the accused? I should be glad if the Minister would give me an assurance on that point, which I do not want to labour, because it is highly sensitive.
My third point on behalf of the police is that this Bill, almost inevitably, will add to their burden of work. The amount of additional paperwork is speculative, but the advice that I am given is that there is certain to be a great deal of it. The amount of police time that will be consumed is, I am advised, likely to increase greatly.
The amount of potential frustration of the police is much more difficult to measure, but I hope that the Minister will accept from me that there is now a morale problem among the rank and file in the police. Often they take great risks to apprehend dangerous, violent criminals and all too often they see that, in the first instance, such persons are bailed and then receive sentences that many—the majority of the public, as well as the police—regard as too lenient. These convicted criminals may also be paroled too rapidly, and go on to commit further crimes.
The Minister must realise that there is great sensitivity among the police on this issue. I hope that he will say that if the 537 Bill goes through, and with it the Bill setting up the Police Complaints Board, these measures will take their place within a more general pattern of the attempts to contain crime and violence.
The problem seems to be that the pendulum has swung too far in the direction of reforming, liberalising and ameliorating the law, away from what the majority of our people and we on the Opposition side care much about, namely, the protection of society and the maintenance of law and order at this time—for seldom has it been so much at threat.
§ 8.28 p.m.
§ Mr. Charles Irving (Cheltenham)
I have sat through the whole of this debate so far and have been impressed by the sincerity of the speeches that have been made. I will not delve into the intricacies of the legal situation because there are many distinguished lawyers on both sides of the House who can deal with them. I want to say a word or two about the human situation.
The importance of the bail issue has never been better described than by Lord Hailsham when, speaking in 1971 as Lord Chancellor, he called the refusal of bailthe only example, in peacetime, where a man can be kept in confinement without a proper sentence following conviction after a proper trial. It is, therefore, the solitary exception to the Magna Carta.A court's decision whether to grant bail can vitally affect on the one hand the individual's right to liberty and on the other the proper administration of justice and the protection of the public from people charged with serious offences.
No legislation which exposed the public to a real risk of serious crime by people on bail would be acceptable to the House, the public or any of the professions involved in the criminal justice system. But the report of the Home Office Working Party on Bail Procedures in Magistrates' Courts, on whose recommendation this Bill was based, showed that senior and representative members of those professions considered that some of those now being remanded in custody could be granted bail without any such risk.
The report, whose signatories included senior and representative police officers, magistrates and justices' clerks, stated:We do not believe that the stage has yet been reached where those remanded in custody 538 form an irreducible minimum, none of whom could safely be released on bail.Although, to our credit, we in this country have a smaller number of remand prisoners per 100,000 population than comparable industrialised Western States, our figures for remands in custody are still disturbing. There was a carefully-documented article in The Sunday Times, republished from the Law Society's Gazette, stating that 500,000 days a year are spent in prison by people accused of crimes for which they have not been tried or convicted.
In 1974, a total of 64,981 people were remanded in custody, of whom 2,100 were found not guilty, or whose cases were not proceeded with; 29,000 were given non-custodial sentences and only 26,000 received custodial sentences. Of course, the fact that an offender is eventually given a non-custodial sentence does not necessarily mean that it was wrong to remand him in custody, since different considerations apply at the remand stage from when the court passes sentence.
Even so, it must concern us that so high a proportion of people remanded in custody are not eventually sentenced to imprisonment. The Home Office recognised this in its Circular 155/75 on bail procedures, which said:It is a cause for particular concern that defendants remanded in custody who do not ultimately receive a custodial sentence represent about one half of all defendants remanded in custody.Why is this a cause for particular concern? Partly, of course, because of the sheer economic cost of locking people up who could safely be granted bail. In 1974, the cost of keeping someone in prison was £59 a week for a man, and £74 a week for a woman. According to a recent Parliamentary Answer by the Under-Secretary of State, for the financial year 1975–76 the estimated cost of running the prison system in England and Wales is £140 million. In addition, allied services incurred for prison purposes during the year are likely to amount to about £25 million and the capital expenditure on building and the purchase of plant to around £31 million. If we take all this expenditure into account, the average cost of keeping someone in prison in the financial year 1975–76 works out at the colossal—and I repeat "colossal"—figure of over £90 a week.
539 But the financial cost is only part of the story. We must not forget the human cost of unnecessary remands in custody. A defendant who is refused bail loses earnings if he was employed at the time of his arrest; he may well lose his job; he will also almost certainly fall behind with his rent, and since landlords cannot be expected to keep accommodation open for more than a few days, eviction may well follow; if he has a family, it will suffer both financially and emotionally as a result of his imprisonment.
But the further cost of unnecessary remands in custody is the stress and strain on the prison staff who have to work in our overcrowded prisons, and on the prisoners who are incarcerated in them. In 1975, remand prisoners constituted over 14 per cent. of the average daily prison population. Over the last decade the number of remand prisoners has increased even faster proportionately than the number of prisoners serving sentences. Overcrowding is particularly severe in prisons which receive people on remand.
To take one example—we have heard about it previously from the right hon. Member for Walsall, North (Mr. Stonehouse)—Brixton Prison officially has accommodation for 649 inmates, yet in 1975 its average daily population was 960. At one point during the year its population reached the appalling figure of 1,090.
The stresses and strains of overcrowding cannot be under-estimated, and the current public expenditure restrictions have made the situation even worse.
The Sunday Times said this on April 11th:Fresh outbreaks of violence in goals are feared by prison officers because prisoners are facing longer hours locked up in their cells and are having their privileges cut. This results from a cost saving edict by the Home Office that the overtime worked by prison officers is cut by 10 per cent., saving £2 million a year. The prison service is some 20 per cent. undermanned, and only exceedingly long overtime has kept the prisons running.… The overtime cuts, which came into effect on 1st April, have already meant some prisoners being locked up in their cells for 23 hours a day. At Winson Green, Birmingham, prison officers say that nearly 1,000 men have been affected in this way…'If staff are not available, then the least essential parts of the regime have to be axed', the Home Office said.At the big remand prisons, including Brixton and Holloway in London, and Winson Green 540 in Birmingham, the primary function was to serve the courts. In these places, the opportunity to work could be axed in some circumstances, as well as sport and recreational facilities. But there is nothing new about a prisoner spending 23 hours a day in his cell ', the Home Office added.That is quite true, but to me it is tragic, and I welcome and support whatever steps we take with regard to the Bail Bill. Any legislation which, while maintaining real protection for the public from those accused of serious offences, attempts to minimise the financial and human cost of unnecessary remands in custody must surely be welcomed.
§ 8.38 p.m.
§ Mr. James Dempsey (Coatbridge and Airdrie)
I was very pleased to hear the Minister state that there would be provision in the Bill to deal with the changing procedures in the payment of bail. This is very important to Scots people. It may be that some right hon. and hon. Members will be wondering why I have intervened in the debate. The reason is very clear. We have already had some experience of the very unfair operation of the English law as it applies to Scots people.
A constituent of mine was released from a court in Essex on the understanding that bail would be paid and that the surety would be the parents. When it came to the payment of that bail, a local police office refused to accept it, having been told that a Scots police office had no authority to accept bail due in an English court. The two parents, my constituents, had to motor all the way to Carlisle, 100 miles there and 100 miles back, in order to deal with the problem of guaranteeing the surety and depositing, the bail to ensure that their son would be released from custody at a court in Essex. When they got to Carlisle they were kept in the station for nearly five hours, only to be told that not even there could the bail payment be accepted. They were sent back to Airdrie.
It was at that stage that they contacted me. I, in turn, made representations to the office of the Home Secretary. In that connection, I should like my hon. Friend to convey my personal gratitude to the official who dealt with the problem for me. The upshot was that the parents were again asked to go back to 541 Carlisle where, on this occasion, their surety was accepted, following which they returned again to Airdrie. It meant that they had travelled 400 miles before their surety was accepted for their own son.
In fairness to the Carlisle police, they apologised courteously for their failure to accept the surety on the parents' first visit. However, I raised the matter with the Secretary of State for Scotland and asked him to consult the Home Secretary and his team of Ministers about this unacceptable provision in English law, whereby bail, once fixed, no matter what the circumstances, can be paid only in an English authority office—either the court or the police office.
This, of course, is a tremendous disadvantage to Scots people. As I pointed out, it cost my constituents 400 miles of petrol, two days' loss of work, the time involved, considerable inconvenience, the expense of buying meals, and so on, when the whole matter could have been resolved by the law permitting them to deposit their surety for their son at the local police office.
The Minister may be surprised to hear of a case of that nature. I merely remind him that, although my constituents may belong to a country called Scotland, they are United Kingdom citizens. They pay their taxes in this country, they work for this country and, when the necessity arises, they fight for this country. In my view, it is completely unacceptable to treat citizens of this country in that fashion.
I wish to draw attention to what I believe to be a serious omission in the English system for the payment of bail. I understand that conditions are bound to be laid down by the appropriate magistrates, and I also appreciate that legal techniques are different from those applying in Scotland. But I cannot understand, why, in circumstances like those affecting the case of my constituents, English law cannot be adjusted so as to enable a Scot to be accepted as surety for a member of the family who has been released on nail and to enable him to deposit that surety in the police office nearest to his place of residence.
I wish to draw the attention of the Minister to this invidious situation and to express the hope that, in Committee, there will be a detailed discussion of what is happening in such cases.
542 The Minister talks of changing procedures. I hope that in future any changes will mean that Scots people will be spared the inconvenience and cost of having to travel to the nearest England town to deposit bail as surety for some member of the family, for some friend, or for some other person who has been released on that condition by an English court.
I hope, therefore, that my hon. Friend will have consultations with the Secretary of State for Scotland with a view to looking more fully into this matter and discussing it with the Home Secretary in the hope that we can arrive at a much better provision and a more acceptable arrangement for the payment of bail by Scottish sureties on behalf of people who have been charged with offences in English courts.
§ 8.45 p.m.
§ Mr. Mark Carlisle (Runcorn)
I am glad to have the opportunity to speak briefly and give a general welcome to the Bill. In doing so, I reiterate my concern that we are taking this Bill in this way today. I did raise a point of order with Mr. Speaker, and made a protest, because I think it is totally wrong that a Bill of this nature should be brought on to the Floor of the House at the last moment, just because the Government got into difficulty over their programme of business today.
One of the consequences of this situation is that not only is one not prepared for the debate, but there are circumstances which mean that hon. Members cannot attend the whole debate. I had a meeting, which I could not avoid, at 5 o'clock, and I did not have an opportunity to hear either the Minister of State or my hon. and learned Friend the Member for South Fylde (Mr. Gardner) speak in opening the debate. Therefore, I hope that the Minister of State will forgive me if I cover matters that have already been raised, cir ask questions with which he has dealt already. It is not my fault that I could not be here.
In 1970, when I was a Minister in the Home Office, we looked at the general question of the prison population, which had reached about 40,000 a year. I remember that at an early meeting the Permanent Secretary at the Home Office told me that we should consider that part of the population which had not yet been sentenced. I remember thinking at the 543 time that there was very little hope of making much of an advance in reducing the population by dealing with those on remand. Not only was I proved completely wrong; I was surprised to learn—as my hon. Friend the Member for Cheltenham (Mr. Irving) has just pointed out—just how high a proportion of the daily prison population was either unconvicted or unsentenced. It runs to about 5,000 of the daily population.
The next thing I noticed was that this high proportion of unconvicted people in prison was put in those jails which were the most overcrowded—of necessity, the local prisons. Reference has been made to Brixton Prison, and one has only to look at the Ashford Remand Centre to see another example of overcrowding.
One has the problem of the size of the prison population, the fact that it is in the most overcrowded prisons, and also the fact that these are the prisons which are extremely hard on the number of staff they take up, because of the work that has to be done in taking those on remand back and forth to court. Therefore, many of the prisoners are in their cells for 23 hours a day, because they cannot be required to work and the limited number of staff available means that they must for long periods be locked in their cells.
All these factors add to the argument that one should, wherever possible, reduce to a minimum, at any one time, those in prison who are unconvicted. I think that the aim of keeping to the irreducible minimum the size of the population of those remanded in custody is one that hon. Members on both sides would support.
Although I welcome the Bill, I am bound to say that I do not believe that it will have a major effect. In practice, I think that courts already start, rightly, with the presumption that bail should be granted to those who are unconvicted or unsentenced. On the other hand, it is right that that presumption should be set out in the form that it is in the Bill. I add the suggestion that one might go further and suggest that where bail is refused, the court should give its reasons for refusal. I think I am right in saying that this point is not covered by the Bill at present.
§ Mr. Carlisle
I apologise if it is covered. Perhaps the Minister will deal with the point when he replies.
In a way, I was responsible for setting up the Working Party on Bail Procedures in Magistrates' Courts, out of which the Bill has now appeared. That is why I am glad to give it a general welcome.
I should like to ask the Minister certain questions about other experiments to reduce the remand population that have been started by the Home Office in recent years. What is happening about bail hostels? Many people have been and are still remanded in custody because they have no home to which to go. We need a wider provision of bail hostels. What up-to-date figures can the Minister give us on the experiment started in 1971 for the provision of bail hostels?
What has happened with the experiment that was started so that those who are remanded for medical reports would undergo medical examinations as outpatients either at hospitals or in the prisons themselves? Is that working? Are people still being remanded for medical reports, or are more being dealt with on an out-patient basis?
It seems to me that if a medical report is required, it is never a good reason to remand a person in custody for that report if there is any other way in which the report can be provided. I hope that that is another matter that will be looked at during the passage of the Bill.
I have said that the Bill will not have any earth-shattering results. I do not think that we shall vastly reduce the number of those remanded in custody, but I think that the Bill will help. We ought not to get too upset about the fact that a proportion of those remanded in custody are ultimately acquitted. That is always bound to happen, for reasons that have been pointed out. The grounds for remanding in custody are subject to a test completely different from that in relation to the eventual acquittal of the individual. Nor should we place too much store on the fact that a high proportion—about 50 per cent. or so—of those remanded in custody eventually finish up with a non-custodial sentence.
We must face the fact, as a practical issue in the courts every day, that often for those who are remanded for sentence 545 to the higher court, the only thing that one has left to say there on behalf of the individual is that he has been in prison for about four weeks awaiting sentence. It may be that factor that influences the judge most of all in deciding ultimately, in a borderline case, that he need not impose a custodial sentence. Therefore, the fact that every remand in custody does not end with a custodial sentence does not necessarily mean that in every case the magistrates were wrong to remand in the first place.
That having been said, we still have a duty to keep to a minimum the number of the remand population, because of the cost, the conditions, and, of course, the human effects that being in prison has on someone who is unconvicted. If we are to reduce the daily remand population we must consider not only the cases remanded but also the length of time for which each person is remanded.
Substantial progress has been made in the past five to seven years in reducing the waiting period for those in custody before trial. Can the Minister give us any figures of the up-to-date position? My recollection was that it was good in the rest of the country, but still pretty bad in the London area. Have there been improvements? Is everything possible being done to bring forward the trials of those remanded in custody at the earliest possible moment?
I hope that the Minister will resist the suggestion—currently being widely reported—that some presumption of bail before sentencing should apply to those who give notice of their intention to appeal against conviction. That would be disastrous. We have already removed from the Court of Appeal any power to increase sentences, with the result that there is very little disincentive for anybody to appeal to the Court.
The Court of Appeal has been inundated with work, and this lengthens the waiting time for meritorious appeals. The suggested presumption would increase enormously the number of people who would submit appeals because they wanted a few weeks on bail before starting their sentences, and would increase unacceptably the volume of unmeritorious work in the Court of Appeal.
On the amendment to the schedule to which the Minister referred, I believe 546 that the words that have come from another place are considerably better than the words that went there. We cannot forget that this is a question of balance between the rights and freedom of the individual and the duty of courts to protect society.
In our desire to see that the remand population is kept at an irreducible minimum, let us make sure that we do not go so far that we reach the situation that exists in many American cities, in which policemen tell stories of picking up armed robbers one day and shooting at them—while they are committing other offences after being let out on bail—the next day.
There is bound to be a responsibility to remand some cases in custody, and the words in the schedule are about right.
Having read the working party report with interest, I welcome this Bill, which has resulted from it. I hope that it will help to reduce the remand population of our prisons.
§ 8.59 p.m.
§ Mr. Ivan Lawrence (Burton)
I do not welcome the Bill. I do not welcome any legislation which will not remedy positive evil or do positive good. We spend too much of our time churning out legislation which will not achieve anything very much.
The Bill is unnecessary and it is a pity that it has been slipped in today for the convenience of the Government, who are going through an embarrassing time. It is not good enough to treat a matter which involves the liberty of the subject with such scant respect as has been achieved by slotting in the Bill to fill in the business for today. A number of my hon. Friends who would have wanted to take part in the debate had already been committed elsewhere and have been unable to take part. I have had to play truant on a Select Committee which is discussing an important matter because I happened to think that it was more important for me to be present in the Chamber. It is a choice that should not have been presented to us.
It is well known that constituents and interested parties keep the correspondence which they send to Members to the very last minute before a Bill is discussed so it is in the forefront of our 547 minds and does not get lost beneath a stack of papers. There is a real point made by so many of my hon. Friends—namely, that what has happened will derogate from the value of this Second Reading debate.
The hon. Members for York (Mr. Lyon) and Ormskirk (Mr. Kilroy-Silk) said that the Bill could have been debated at an earlier stage, but the liberty of the subject should not be discussed in some Second Reading Committee. That is what would have happened if the Opposition had not insisted on the Bill being debated in the Chamber. Of course, we did not insist that it should be debated in these circumstances. However, as we have to have the Bill and today's debate, there are one or two points that I must make. I shall be brief because much has been said and there is not a great deal more that can be said very eloquently.
Some of the measures contained in the Bill merit support—for example, the legal aid provisions, the putting of reasons in writing, coroner's powers and a number of other matters. But most of those measures could have been achieved by administrative action. Possibly the introduction of the offence of failing to surrender provides a tidier way of dealing with the absconder than the recognisance system, but that has not been proved to anybody's satisfaction as being a likely benefit of any great substance to the law.
I am concerned that there might be people outside this place who hope too much of the Bill, who hope that it will do something substantial. To some extent, some of the things that have been said as a prerequisite for supporting the Bill are misapprehensions. For example, it is said that 20,915 people who were remanded in custody were subsequently not given prison sentences, as though that is necessarily an injustice which has been caused them. But that is not so. Most of those cases, perhaps all of them, might have been matters in which the judge or magistrates considered prison appropriate, but as the short remand had had an effect upon the defendant it was found not necessary to pass a prison sentence, bearing in mind the need not to clutter up the prisons with people who might have learnt a lesson through a short remand in custody. The sum total of that 548 action might have been of some benefit to the accused.
§ Mr. Andrew F. Bennett
Does the hon. Gentleman agree that in the 20,915 there was a substantial number of people who could not have been given prison sentences if proved guilty? Therefore, for the magistrate or anyone else to suggest that they were not given prison sentences because they were remanded in custody would in effect, be getting round the law.
§ Mr. Lawrence
If that had happened in a substantial number of cases it would have been wrong. However, the hon. Gentleman has given no figure for those who ought not to have been remanded in custody. I see the Minister of State shaking his head.
§ Mr. Lawrence
I cannot give any figures, but I can tell the hon. Gentleman that I had been a daily practitioner in the criminal courts for 13 years before I came to this place. In the course of my career, I must have made hundreds of applications for bail. Therefore, I have experience of the way in which I, as an applicant for bail on behalf of countless accused persons, have reacted to the decision taken by the court. The Minister may accept that or not. In some ways, it is perhaps better than a statistic; we contribute the benefit of our own experience and knowledge where we can.
A second matter that has been raised as a basis for the Bill is that 2,101 people were subsequently found not guilty. The Minister's predecessor, in an Answer to me, said that in 1974 no fewer than 52 per cent. of people who were tried before juries in the Crown courts, having pleaded not guilty, were acquitted. On the basis that most of those people were highly unlikely to have been innocent, my conclusion is that if the guilty people had to serve only a period on remand in custody, they were lucky.
No one should be left with the impression that the Bill is likely to have much effect on the 51,422 people who were 549 remanded in custody. The law on the question of when bail is to be refused will not be changed substantially or at all by the Bill. All that is happening is that statutory effect is being given to what is a presumption of bail in practice in our courts at present. Whatever may have happened in years past, magistrates, after the 1967 Act, and judges do appreciate the undesirability of unnecessarily remanding people in custody. Therefore, the practice is to grant bail, and the requirements are clearly laid down in the 1967 Act. The practice in the Crown court is to grant bail unless there are substantial objections—for example, that the accused is likely to interfere with witnesses, to abscond, or to commit further offences.
Bail is usually treated as a matter of common sense. Nothing in the Bill will alter the need to apply common sense, nor is it in any sense desirable that it should. Those of us who practise in the Crown courts know that bail applications are simple, speedy matters in which the judge who is a practitioner of experience applies his mind to the essence of the question. It would be seldom, in my view, that persons who are likely to be granted bail under this Bill would not already be granted bail under the present system.
The Government are taking this opportunity to present a clear statement of the grounds for refusing bail. However, they have made a somewhat clumsy effort in Schedule 1. If what is needed is to provide everybody with a clear statement which can be seen and understood of the grounds for not granting bail, Schedule 1 is not clear enough. I submit that it is not necessary to use the phrase "unacceptable risk" or "probable". It is better that we use the phrase that was used in the 1967 Actwhere it appears to the court that … he is likely to commit an offence".That broad definition will avoid all kinds of legal arguments about the meaning of "probable" and "unacceptable risk" and the necessity of producing lots of books to argue about it. It might be simpler for a list of the exceptions to be clearly set out. The first is where it appears to the court that he is unlikely to surrender to his bail because (a) he has no fixed abode, or because (b) of the seriousness of the 550 offence and the likely sentence, or because (c) of his character and antecedents, or because (d) his previous history in regard to bail.
The second is where it appears to the court that he is likely to commit an offence whilst he is on bail; thirdly, where it appears to the court that he is likely to interfere with witnesses or otherwise obstruct the course of justice; fourthly, where it appears to the court that he should remain in custody for his own protection; and fifthly, where the court is satisfied that it has not been practicable to obtain the necessary information. If they were listed in that way, the position would be clear to everybody.
There is one point that I consider to be of great importance. The nature and strength of the evidence is a matter that ought to be considered by the court considering bail, and that is a welcome addition to the Bill. It ought always to have been the law, and there is clear authority for saying that the nature of the evidence is a matter that ought to be considered.
Unfortunately, I had one experience of a case in which a senior police officer went into the witness box and said that he wanted a remand in custody, and when I asked what was the nature of the evidence, he said "I would rather not say". The stipendiary magistrate said "If the chief of police says that he would rather not say, that is good enough for me". I said "It is not good enough for me because, as I understand it, the law is that there must be some justification for arresting a man and keeping him in custody".
One must be forgiven for suspecting that what might have happened there was that a man against whom there was no evidence at all was arrested by the police in the hope—and the hope may have been fulfilled in this case—that once he was arrested a number of witnesses would come forward to give evidence. When the matter went to the Divisional Court, I was told that it was all academic since by the time it took me to get to the Divisional, Court witnesses had come forward with evidence.
That is obviously an undesirable situation, and I do not think it happens very often. This may have been a one-off out of hundreds of thousands of cases. It was a matter of a serious crime which 551 was causing a great deal of general concern. But obviously, if we can stop that from ever happening again by putting this provision in the Bill that is desirable, although I do not think that that example is sufficient reason for introducing legislation.
As long as there is a provision that bail need not be given, whether the test is unacceptable risk or probability, only because the accused has no fixed address, this is an undesirable factor. It is probably the principal reason why our prisons are cluttered with persons who would otherwise get bail, and I hope that the Minister will use the powers of Sections 48 and 49 of the Powers of Criminal Courts Act 1971 which enable the Government to spend money to provide more bail hostels. I trust that there will be a satisfactory answer to the question posed on those lines by my hon. and learned Friend the Member for Runcorn (Mr. Carlisle).
Bail presents society with a considerable ideological problem which is simply postulated in this way: if everyone is presumed innocent until proved guilty, why do we put people in prison when they are presumed innocent?
That is a difficult question to answer directly, but one can avoid it and say that four practical situations at least are clear: first, that it would be nonsensical to release some accused persons whom the police after great trial and risk to life and limb have finally apprehended; secondly, that it would be nonsensical, and the public would think it to be nonsensical, if people who were known to the police to be likely to go on committing crime—for example housebreaking—were granted bail to be able to do so; thirdly, that it is important that the conditions of custody must be decent and tolerable at all times—and I share some of the criticisms that have been made by the right hon. Member for Walsall, North (Mr. Stonehouse) and others; and fourthly, that the consequences of remand in custody must be recognised by everybody to be so catastrophic for prisoners who may not, when the truth is eventually known, deserve to have been in custody—catastrophic for their families, their work, their position in society, and even in many cases for the adequate preparation of their defence. 552 Apart from clarifying the principles upon which bail is granted, and setting them out in this Bill, if we are to have it, we should think a little further about improving the consideration of bail along the lines suggested by the Society of Conservative Lawyers in 1971—namely, that the accused should have his right to liberty examined with the same care before trial as his plea of innocence during the trial. The society recommended that:Courts could be provided with a universal questionnaire to cover all these matters. In busy courts the possibility of using special bail officers to collect essential information should be considered. A certain way of reducing the number of remand prisoners is to see that the courts have all the relevant facts for a decision of bail. The court must not be left to rely, as so many are, merely upon the favourable or unfavourable advice of the prosecution.I know that an administrative direction has gone round and that, to some extent, it is being implemented, but here is an opportunity to make it a statutory requirement. Perhaps the Minister will look further into that.
We are passing legislation which I believe to be unnecessary. In contrast with so many of the Government's Bills, which will do a great deal of harm, I do not think that this Bill will do any particular harm. I just do not think that it will do much good. I agree with my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) that our time could have been better spent than it has been spent this afternoon.
§ 9.18 p.m.
§ Mr. Ian Percival (Southport)
It is entirely fitting that we should be discussing this Bill, which is concerned entirely with that most important of all matters—the liberty of the subject—on the day when Magna Carta has been so very much in our minds and on the very day when we presented a facsimile of it to our American cousins in the Great Hall of this Palace and such fine words have been spoken about it, in all sincerity. But it is outrageous that this debate should have been arranged at such short notice that, contrary to the spirit of that greatest of all charters of human liberties, we are precluded from discussing it properly, and—one has only to look at the House to realise this—many hon. Members have been deprived of the chance of being here. Many members of the public, and 553 public associations—for instance the Magistrates Association—which might have liked to be here, and others, like the Police Federation and members of the Criminal Bar working party, and so on, have also been deprived of the chance of being here.
It is right that the public should know why this has happened. I am perfectly conscious of the fact that the point I am making is a party political point. It is right that the public should know that this has happened because the Government managers, having got in a terrible muddle over their business, have chosen to force this Bill into the space vacated by their own errors, despite the fact that, by common consent, it is a very poor way of treating a measure of this importance.
What I have just said is intended to be a party political point, and a strong condemnation of the Labour Party. But having said that, I may say that there is nothing else in my remarks which has any party political content.
My hon. and learned Friend the Member for South Fylde (Mr. Gardner) has made it clear that we wholly subscribe to the underlying philosophy of the Bill. Certainly we shall give it a Second Reading. As my hon. Friend the Member for Burton (Mr. Lawrence) said, we must be sure that we are doing something useful. I agree with him. Far too many measures do nothing useful, and only create problems. But I believe that this is a Bill by which we can do something useful, provided that we are careful and do not simply assume that by passing it, never mind in what form, it will do good. It will do good if we get the form right; it will do no good unless we do.
I want to sound a few notes of warning designed to contribute in the long run towards that end, and in three different fields. First, we must be careful how we talk about reducing the prison population. My hon. and learned Friend the Member for Runcorn (Mr. Carlisle) is right to say that we must reduce it to the irreducible minimum, but how do we decide what is the irreducible minimum? We can do so only by getting the right balance between the liberty of the individual on the one hand and the protection of the public on the other. If that also produces a reduction in the prison population, well and good, but our aim in looking at the wording must 554 be to get that balance right and hope that it does in fact reduce the population, rather than to approach the matter the other way around.
Secondly, I am sorry that the hon. Member for Ormskirk (Mr. Kilroy-Silk) has not found it possible to spend more than a minute or two in the Chamber since speaking. Many of us are conscious of the space that he has taken up with Written Questions and Answers on the Order Paper recently on matters relating to the prisons. One might have expected his interests to be sufficiently genuine to lead him to listen to what others had to say about it.
§ Mr. Andrew F. Bennett
Does the hon. and learned Gentleman not accept the point that my hon. Friend made at the start, that the way in which these proceedings have been put on today has caused many hon. Members inconvenience?
§ Mr. Percival
My hon. and learned Friend reminds me that that particular hon. Member said that it had not caused any inconvenience to him except that he had not had time to get hold of the many Written Answers that he has had from Ministers in recent months, so I think that my point is not a bad one.
However, I should have liked, in the hon. Gentleman's presence, to follow up some of the points put by him and by my hon. Friend the Member for Cheltenham (Mr. Irving) about the figures of those who are remanded in custody but are subsequently not given a custodial sentence or are acquitted. One has to be careful in interpreting them either way. There is a tendency to believe that it is always harsh to remand a man in custody and kind to give him bail. Hon. Members should know that it is the experience of many of us that that is not always the case.
Like many others, I sit as a Recorder from time to time, and I know from experience that in many cases the worst thing that one can do for a man or woman is to turn him or her loose from the court there and then. If one is confronted with a man or woman with no fixed abode, accused of, say, shoplifting, with nowhere to go and not a penny in the world, what will happen if one 555 puts that person on bail at, say, 4 o'clock on a Friday afternoon? Almost as sure as eggs are eggs, that person will be in trouble again by Monday. Could one expect anything else?
I have often been clear in my mind that I wanted to put a convicted person on probation but that I should not make the order until I knew where he would go when freed and so have postponed sentence and remanded him in custody for a few days for arrangements to be made for him. I do not consider it to be a kindness simply to mutter a few words to the prisoner in the box and to wish him good luck and turn him loose without knowing where he can go, what he can do and whether there is anybody to whom he can turn. I am now speaking at first hand. I know of many cases in which bail has been refused for that sort of reason—and a very good reason it is. The situation frequently arises, although no one can give the precise figures.
Further, if a man has been on remand in custody, that can and does often tip the scales. Instead of giving a custodial sentence, the court will often gladly agree that as the man has suffered imprisonment and has seen what the inside of a prison is like, it can then take the view that it is unnecessary to impose the custodial sentence which it might otherwise have felt to be necessary. No one knows the numbers, but that happens sufficiently frequently that every recorder and practising barrister that I know has had personal experience of such cases.
Of course the figures in the working party report should be viewed with concern. We must make as accurate an analysis of the figures as possible. But the inferences to be drawn from the figures are not all the same way. The people who draw the inferences all one way are not being fair or accurate. I accept that no one desires that. That is why I have spent a little time dealing with an aspect on which I do have first hand knowledge, as a person who has been called upon to decide many times whether bail should be granted.
I turn to the form of the Bill. My hon. Friend the Member for Chislehurst (Mr. Sims) said that we should be careful 556 not to create more legal problems. I am glad that that observation was made by a layman, because as a lawyer I have been singing that song year in and year out. I have appealed time and again to Parliament to decide what it wants and then to say it in clear words. I have urged Parliament not to write into the statute book words that will surely raise more problems for the courts and lawyers.
Let us look carefully at the parts of the Bill where difficulties might arise. In considering Clause 4 and Schedule 1 we must bear in mind the twin objectives of deciding what is the right balance and, no less important, of using the correct words to give effect to it, so that we do not start an interminable series of new arguments on the meaning of the words used.
I hope that the House really does realise the importance, in the context of bail, of the nature and gravity of the offence alleged.
The working party, whose efforts everyone has rightly applauded, said:The first factor which the court should consider is the seriousness and nature of the offence charged. It would be impracticable to divide offences so as to say that persons accused of certain offences should normally have bail and those accused of other offences should be remanded in custody, since many offences, such as theft and criminal damage, cover a very wide range of gravity and much depends on the circumstances of the individual offence.There cannot be a catalogue of offences. But the report went on:However, the more serious the offence charged, the stronger the temptation to abscond is likely to be, since a defendant who is liable, if convicted, to receive a long sentence of imprisonment has more incentive to abscond than one facing a less serious charge. Moreover, the more serious the offence, the smaller is the risk that can justifiably be taken either of the defendant's absconding or of his committing offences similar to that with which he is charged. Indeed, in our view there may exceptionally be occasions when all the circumstances of the case make the offence so grave and so shocking to public opinion that bail can properly be refused on this ground, even though the danger of absconding or of offences being committed if bail is granted is slight.All those are cases which might excite the public comment to which my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) referred: "What on earth have they done allowing that man out?"
557 The working party continues:We accept that usually the seriousness of the offence is closely related to the likelihood or otherwise of the defendant's answering bail.Then we come to this important paragraph:It seems to us, however, that cases can arise in which it is artificial to regard this only as an indication of the defendant's likely reaction to bail rather than as a reason in its own right for refusing bail.As the Bill stands, one must go to three places in it before coming to the first reference to the gravity and nature of the offence. Clause 4 lays down the presumption that a man should have bail. Paragraph 1 of Schedule 1 sets out the exceptions. There is no reference in either of those to the gravity or nature of the offence. It is only when one comes to paragraph 7 of Schedule 1 that we find any reference to the gravity or nature of the offence, and then it is only a matter to be taken into account by the court in deciding whether one of the requirements of paragraph 1 is met. That is, the court is to ask "Do we think that because of the gravity or nature of the offence he is likely to fail to surrender to custody?" In the Bill as it stands we are doing exactly what the working party recommended we should not do. I hope that the House will carefully consider whether it cannot even now state this as a consideration to be borne in mind by the court directly as one on which it is entitled to refuse bail, instead of doing it in this convoluted way, contrary to the recommendations of the working party.
The working party of the Criminal Bar cited many instances in which, in its experience and opinion, there could be very serious offences in which there was in fact a very slight likelihood of the person concerned absconding, and therefore in which it would be highly artificial for the court to refuse bail because of the seriousness of the offence.
§ Mr. Stonehouse
I am following with fascination what the hon. and learned Gentleman is saying, but surely the point is that the person concerned is presumed innocent. In using the word "offences", the hon. and learned Gentleman is presuming some guilt. Should he not put the word alleged "before "offences"?
Will the hon. and learned Gentleman deal with a matter that so often arises in criminal cases, when the prosecution 558 brings a large number of charges, with the intention of making a deal with the defence outside the court to expedite the trial, and not with the intention of pressing all the charges?
§ Mr. Percival
If I had been as cautious in my language in this House as I would be in court, no doubt I would have referred to an alleged offence by the defendant. However, one deals with an offence that has been committed. Let us, for example, take the case of a murder—
§ Mr. Percival
The right hon. Member for Walsall, North (Mr. Stonehouse) is now doing what he accuses lawyers of doing, namely, taking very fine points. Let us take a case in which somebody has suffered a violent death in circumstances which all point to its having been the result of a crime—perhaps not a murder, but a case of manslaughter. If in that case a person is charged with crime, the right way to describe the situation is to say that there has been a very grave and serious crime and then to add the words—and here I agree with the right hon. Gentleman—"which it is 'alleged' this defendant has committed"
On the main part of his question, yes, there is an ideological difficulty, and my hon. Friend the Member for Burton faced it squarely. If one had always to apply a presumption of innocence, everybody would be given bail. Equally, we know that that is not possible. That is why we all talk in terms of holding the balance—the balance between the right of an individual to enjoy his liberty on the one hand and, on the other hand, the protection of the public. One cannot ignore the latter.
My last point relates to Schedule 1. Many of us feel that, although the present form of Schedule 1, paragraph 1, may yet be open to improvement, the form introduced into the Bill by my noble and learned Friend Lord Hailsham of Saint Marylebone in the other place, taken together with paragraph 7, added to the Bill by the Government in the other place, produces a much more satisfactory package than the Bill contained in its original form.
The Minister said that the Government intend to put paragraph 1 back in its 559 original form, that is, to reinstate probability as the test, though retaining the criteria set out in paragraph 7 in something like the form in which it originally existed.
I must stress that here we are dealing with a choice of words which determines the central issue in the Bill, i.e. the balance we strike between two conflicting interests.
I do invite the Minister's attention to what has been said by noble gentlemen of all and no parties in another place, including at least one Lord of Appeal, who expressed grave misgivings about the balance in the Bill so long as the word "probable" was used as the test. One senior member of the judiciary was quoted as saying that he found it difficult to visualise circumstances in which magistrates faced with such a test could grant bail, that is, if they had to be satisfied as to probability. It is too heavy a test. Hon. Members must try to put themselves in the position of magistrates considering how the police are faced with proof of that probability. It is no good saying "Oh well, the magistrate can wink a blind eye at that". If we put this provision into the Bill, that is the standard which the courts will have to apply.
I draw to the Minister's attention the fact that many voices, some with party connections, some with no such connections, have expressed considerable misgivings about the fact that in its original form paragraph 1 of Schedule 1 tilted the balance far too far in one direction. I earnestly ask the Minister, before the Bill goes into Committee, to reconsider his intention to revert to it.
If the Government were to stick to their intention I anticipate that there could be a substantial difference between the two sides, whereas if the approach were "Let us forget about that: it was not bad as a first attempt, but we are now satisfied that the balance was wrong, so we can rule it out, but we are not absolutely satisfied with what is now in the Bill, so let us get down to it and see whether we can improve paragraph 1" there would be every prospect that the Committee could settle down to the constructive task of doing its best to achieve what I am sure we all want, namely, the proper balance. It is something 560 that we must achieve if the Bill is to serve the purpose that we hope it will serve. With those reservations, on behalf of my right hon. and hon. Friends, I wish the Bill well.
§ 9.42 p.m.
§ Mr. John
With the leave of the House, I will reply to the debate.
This has been such a valuable and thoughtful debate—although right hon. and hon. Gentlemen have disclaimed the value of their contributions because of a lack of preparation—that I feel that it has been one of the best of its kind we have heard. Contributions have been made from a wide variety of experience and many points have been raised. I know that right hon. and hon. Members will understand if I say that many of those points will be pursued in Committee and that I cannot deal with them all now.
I thank the hon. and learned Member for South Fylde (Mr. Gardner) for his reference to the Vera experiment. I am glad to say that after the pilot scheme at Camberwell three courts are now operating this scheme. It is a valuable experiment which has had useful and beneficial results.
Much of the time today has been devoted to the argument of "unacceptable" v. "probable" as a form of words. I respond at once to the hon. and learned Member for Southport (Mr. Percival) by saying that since I was not the draftsman of this Bill I have no parental or proprietorial claim on the words. This enables me to think about the matters the hon. and learned Member has raised, without commitment but with a desire to reach the best formula we can devise to obtain the balance which he thinks is right. I must point out that "probable" is not a word entirely unknown to the law. It sets the tone that we want to accept, arising out of the working party report—namely that bail should be a right and that it should be an exception for it to be refused.
The hon. and learned Member for South Fylde was a little hard upon his noble friend Lord Hailsham when he said that the unacceptability test was unacceptable to his noble Friend. There has been a great division, not only between the two sides of the House on this issue but within the parties. Some see the 561 Bill as it is drafted, containing the unacceptability tests, as adequate and admirable while others say that it is inadequate and wholly unadmirable.
Dealing with the criteria in relation to paragraph 7, I share the view of my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) who had difficulty in understanding the objections to this part of the Bill. The criteria are set out quite clearly in paragraph 1. The evidence necessary to support the criteria is contained in the regulations on the criteria in paragraph (7).
§ Mr. Edward Gardner
My objections are contained in paragraph 56 of the report of the Home Office working party, the first sentence of which sums up the whole matter.
§ Mr. John
I was about to deal with that point. I refer hon. Members to the summary of main conclusions in paragraph 185, which says:There should be no change in the three established reasons for refusing bail, which arethose which are contained in paragraph 1 of the schedule. So I do not think that it quite bears the interpretation which the hon. and learned Gentleman wanted to give it. Nevertheless, as I have said, and as Lord Wigoder has said from his very considerable experience, the seriousness of the crime of itself has never been an independent reason for refusing bail. Hon. Members will also understand and accept that there has been criticism of Section 18 of the Criminal Justice Act 1967 on the ground of absence of criteria and absence of evidence.
My hon. Friend the Member for Stockport, North (Mr. Bennett) raised the question of compensation. This point must be borne in mind, but whether it comes within the Long Title only the Committee stage will tell. But it would be a serious step and potentially very expensive.
The hon. Member for Chislehurst (Mr. Sims) was one of the few who, in a general welcome for the Bill, expressed some agnosticism. He has explained why he cannot be here now, and I fully understand that other matters are pressing. But the value of the Bill has been established notwithstanding certain dissenting judgments within the House. The general body of opinion has been that 562 the Bill is valuable, and I believe that it is no answer to say that one can substitute Government by legislation with Government by circular. That would be a wholly objectionable course of events, and I could well understand the hon. Gentleman making a passionate speech if it were to be done in that way.
The hon. Gentleman expressed certain concern, echoed by others, about the assimilation of the question of bail after conviction with the presumption of bail before conviction. In my opening speech I was clear about the Government's attitude—that they favour a presumption of bail in the specific circumstances where a convicted man was remanded for reports, and not only could bail be refused in the circumstances in which bail could be refused before conviction but also it could be refused in the circumstances where the magistrates had it in mind that they would probably imprison the defendant unless the reports indicated to the contrary, or unless it was impracticable to get a report in any other way. In other words, if the only practical way to get some report was to remand him in custody, they could do it then.
That was a specific and limited exception, and I would not want the House to be under any apprehension that the Government are giving a general welcome for assimilation of the criteria before and after conviction, and certainly they have made no proposal on the question of impending appeal.
The hon. Gentleman also asked about who fills in the information forms. He raised a point about whether the court staff did it or the probation officers. As far as we are concerned, that is a matter at the discretion of the court, and I hope that the most appropriate and efficacious means of getting the forms filled in would be taken by the court concerned.
My hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) raised a number of points. One of them concerned the creation of the new offence, and this was echoed by a number of my other hon. Friends. The working party, after much study of the position—the tribute paid to the care with which it approached it is well justified—came to the conclusion, as stated in paragraph 102 of the report, that it was necessary to have some sort of sanction in relation to failing to answer to bail, which the working party regarded 563 as a serious violation of the criminal process.
In addition to this, my hon. Friend mentioned that the fact that we have a good record in the matter of remands is no reason for complacency. He will acknowledge that I said that in my opening statement. There is no reason for us ever to be complacent, and the manner in which the Bail Bill approaches the question is evidence of this.
The question of legal representation is important. My hon. Friend will know that Clause 11 makes specific references to that matter and helps in that direction.
My hon. Friend also raised centrally the question of the Children and Young Persons Act and the question of remand to adult prisons and to what he called children's prisons. If bail helps generally, it will also help children and young persons in those circumstances, but I think he goes much to far in saying that moral welfare does not enter into it. Section 44 of the Children and Young Persons Act lays this down, and the question of moral welfare has been demonstrated in the "Johnny Go Home" programme shown fairly recently.
§ Mr. Kilroy-Silk
Is my hon. Friend saying that it is for the welfare, moral or otherwise, of a school child that it should be put into prison?
§ Mr. John
My hon. Friend uses the term "prison" in a very wide sense. I am saying that we cannot rule out prison entirely, although we hope that all means or measures would be taken to avoid it.
With regard to the point raised by my hon. Friend the Member for Coatbridge and Airdrie (Mr. Dempsey), I emphasise that Clause 8(6) of the Bill deals with Scottish sureties.
I come to the points made by the hon. Member for Bury St. Edmunds (Mr. Griffiths). I will not, if he will forgive me, deal with the rather Stromboli-like eruptions to which he gave vent at various points in the debate but rather with the serious points which he made about the Police Federation. He will know that representations were made to the working party by the Police Federation.
No representations have been made to the Government by the Police Federation 564 since the publication of the Bill, but there were on the working party two very distinguished policemen, the Chief Constable of Leeds and the Assistant Commissioner of the Metropolitan Police. Therefore the police interest was not ruled out. It was not a working party report which came, as it were, from the hothouse of inexperience. It was tempered with the experience of serving policemen.
The hon. Gentleman asked about rabies and about State security. The same criteria apply there. He asked whether I was satisfied that my formula would work. Subject to the natural caveat of the lack of absolute dogmatism that I have shown in answer to the Opposition Front Bench, certainly I am satisfied.
§ Mr. Percival
Does the Minister not appreciate that what my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) complains about is the haste with which this matter has come on and that those who had the chance to present their views beforehand have not had the chance to listen to the debate?
§ Mr. John
That is a refinement which was not at first made. I understand the point now being made, and I make no comment on it save to say that, if the complaint were, as it were, the question of representations, the position is quite clearly as I stated it.
The hon. and learned Member for Runcorn (Mr. Carlisle) directed a series of questions to me, and I shall try to answer them as briefly as possible. If he will refer to Clause 5(3) and (4), he will see that the reasons need to be in writing. The hon. and learned Gentleman asked me about bail hostels. There are five bail hostels and 30 probation hostels which have space for some people on bail.
Next the hon. and learned Gentleman asked me about out-patient examinations in prison. These are currently running at four prisons at the moment. There have been a number of appointments, but there are some vacancies, and we hope that increasing use will be made of these facilities.
The hon. and learned Gentleman raised one problem which underlies a lot of the concern in this House. It is that many 565 people have to wait many weeks on remand before they achieve trial. I cannot give precise figures in the confined situation in which we are at the moment, but the position is undoubtedly worse in London than in the rest of the country. Roughly, the time awaiting trial is about 14 weeks in London and eight to 10 weeks elsewhere. We have tried more judges and the provision of more court rooms to cut this down but, unfortunately, there has been an increase in indictable crime which has prevented major improvements in that regard.
At several stages, we have been counselled not to claim too much for this Bill. Certainly nothing that I have said has made any exaggerated claim for it. What I have said is that the Bill, with its enshrinement of the principle that a person is entitled to bail unless there are exceptional reasons, is an important one to put in a statute.
It will be a valuable Bill, and the Committee stage can perform a valuable function in this regard in scrutinising it carefully. I commend it to the House as 566 being a measure which will do good. It is not a neutral measure. It is a measure for the better in our penal policy.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).