HC Deb 12 May 1982 vol 23 cc847-9

'(1) In section 28 of the Legal Aid Act 1974, after subsection 5 there shall be inserted the following subsection—

(2) In section 81(1) of the Supreme Court Act 1981, after paragraph (e) there shall be inserted the following paragraph—

Brought up, and read the First time.

Mr. Kilroy-Silk

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

The new clause would provide defendants remanded in custody by magistrates' courts with a legally aided right of appeal to the Crown court.

For many years the system of judicial review of a magistrates' court decision to refuse bail has been allowed to remain in what everyone agrees to be a highly unsatisfactory state. A defendant refused bail at a magistrates' court has a right of appeal to a High Court judge. There are two separate procedures for applying for that bail.

One procedure is through the Crown Office, with about 500 applications being made each year. In practice, this procedure is usually available only to those who are privately represented, because criminal legal aid is not available for this purpose. Although civil legal aid is technically available, until recently it was virtually never granted. The Law Society has recently made some limited moves to make civil legal aid also available for this purpose, but it remains to be seen how narrowly or extensively it will be granted in practice.

The second procedure, which is available to defendants without sufficient means to employ a solicitor privately, is an application for bail through the Official Solicitor. Over 5,000 such applications were made in 1980. However, in that year the success rate of applications made to the Official Solictor was 9 per cent., while the success rate for applications made through the Crown Office was 68 per cent. A partial explanation of this difference is no doubt that the Official Solicitor puts all applications before the judge, irrespective of their merits, whereas counsel briefed privately would presumably regard it as his duty to advise the would-be applicant whether the matter was worth pursuing, and therefore acts as a sieve for cases going forward. In spite of that, as the Cobden Trust report "Bail or Custody", published in 1971, observed: It is probable that the wide difference between these figures is fundamentally a reflection of the fact that the applicant who pays for his appeal is represented by professionals who are aware of what aspects of the case are likely to lead the judge to grant bail, and secondly of the most effective ways of presenting information favourable to the defendant. In a memorandum produced in 1979 entitled "Bail Applications", the Law Society described the present arrangements for applying for bail to a High Court judge in chambers through the Official Solicitor as "quite unsatisfactory" and observed: The defendant makes his application for bail on a misleading and inadequate form. Any objections by the police to bail are not communicated to the defendant but direct to the Official Solicitor. The defendant is neither present nor represented and therefore has no opportunity to respond to objections to bail of which he is likely to be entirely ignorant. The "misleading" aspect of the form referred to by the Law Society is that it specifically asks the Official Solicitor to act for the applicant, leading the applicant, the prisoner, often incorrectly to believe that he is being represented in some way.

At present, a defendant who has been committed in custody to the Crown court for trial or sentence may apply for bail to the Crown court, and the cost of such bail applications is covered by the Crown court legal aid order. However, defendants who are still on remand before a magistrates' court have no right of application for bail to the Crown court. This new clause would give them such a right.

The advantages of a Crown court application over the High Court procedure are clear. It is more accessible, and therefore speedier, because the fact that Crown court centres in England and 'Wales are often in the same building as the magistrates' court means that a Crown court judge is more likely to be near at hand.

In 1979, the Royal Commission on legal services adopted a much more positive attitude towards this proposal in its final report. It stated in paragraph 14.21: It has been proposed by the Law Society that, when a defendant has been remanded in custody by a magistrates' court, his solicitor should be able to make a single oral application to a Crown court judge in chambers, recovering the fee From criminal legal aid funds … We recommend that this procedure be adopted as an interim measure, and that the system as a whole should be reviewed when the effects of the Bail Act 1976 can be fully assessed". It is true that the proposal has financial implications. But against this relatively modest cost must be offset the cost of keeping defendants in prison and producing them in court at regular intervals, as well as the improvement which the proposal would make both to the quality of justice and the appearance of justice which are essential to any system of criminal law.

When this proposal was discussed in Standing Committee on 18 March, the Minister accepted that the present arrangements for applying for bail to a judge in chambers are "not fully satisfactory" and said: I am therefore able to give an undertaking that we shall give the new clause serious and, as I indicated, sympathetic consideration. We must decide the form in which legal aid should be provided, and we must ensure that the necessary resources are available … But if the hon. Gentleman will accept those assurances I shall undertake to consider the possibility of putting down a Government new clause on Report to give effect tc the principle of his new clause"—[Official Report, Standing Committee A, 18 March 1982; c. 668–69.] I accept that the Minister gave assurances only to undertake to consider the possibility of putting down a new clause to give effect to the principle of the new clause we were then debating. I do not therefore chide him for not putting down a new clause. We have therefore put down a new clause covering the principles with which the Minister agreed. I hope that the hon. and learned Gentleman, having had an opportunity to consider the matter at length, will feel that he can accept not only the principle but the reality of the new clause.

10.30 pm
Mr. Mayhew

As the hon. Member for Ormskirk (Mr. Kilroy-Silk) said, I gave an undertaking when a similar new clause was considered in Committee that the Government would consider the possibility of tabling their own amendment on Report to meet the gap.

Persons in the custody of magistrates' courts can apply for bail to the High Court, either through the Official Solicitor or the Crown Office procedure. The Official Solicitor acts without any means or merits test being applied, but applicants are normally dealt with on the papers alone. For one reason or another, there is a low success rate by that route. The Crown Office procedure involves an oral hearing and civil legal aid is available for it, but that means that one has to satisfy the local committee that there are reasonable prospects of success and that one's means are below the statutory maximum.

I was persuaded that there was merit in the principle of the new clause moved in Committee. It has not proved possible to complete our examination of the matter in time to do as we hoped, but I can say that a legally aided avenue of application to the Crown court will be provided for persons who have been refused bail by a magistrates'court. We have not yet been able to settle the precise form of the procedure that will operate or how the avenue of application should be formulated in statute.

However, I can give an unequivocal undertaking that we shall table an appropriate amendment in another place to provide for an application, legally aided—subject only to means—to the Crown court. I hope that on the basis of that augmented and improved undertaking the hon. Member for Ormskirk will not press the new clause.

Mr. Rees-Davies

I hope that any scheme will provide that an applicant must show a reasonable case. Otherwise anyone will be able to appeal to try to get a further hearing before the Crown court. It is important to recognise that there must be some protection against applications by those with a worthless case.

Mr. Kilroy-Silk

In the light of the Minister of State's welcome, clear, unequivocal and generous assurance that the matter will be dealt with in another place, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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