§ POWER OF CROWN COURT TO GRANT BAIL PENDING APPEAL
Lords amendment: No. 47, before clause 27 insert:
F.—(1) In section 81 of the Supreme Court Act 1981—
(a) in subsection (1) (which lists cases in which the Crown Court may grant bail) at the end of paragraph (e) there shall be added—
(f) to whom the Crown Court has granted a certificate under section 1(2) or 11(1A) of the Criminal Appeal Act 1968 or under subsection (1B) below ;";
(b) the following subsections shall be inserted after that subsection—
(1A) The power conferred by subsection (1)(f)does not extend to a case to which section 12 or 15 of the Criminal Appeal Act 1968 (appeal against verdict of not guilty by reason of insanity or against finding of disability) applies.
(1B) A certificate under this subsection is a certificate that a case is fit for appeal on a ground which involves a question of law alone.
(1C) The power conferred by subsection (1)(f)W is to be exercised—
- >(a)where the appeal is under section 1 or 9 of the Criminal Appeal Act 1968, by the judge who tried the case; and
- (b)where it is under section 10 of that Act, by the judge who passed the sentence.
(1D) The power may only be exercised within twenty eight days from the date of the conviction appealed against, or in the case of appeal against sentence, from the date on which sentence was passed or, in the case of an order made or treated as made on conviction, from the date of the making of the order.
(1E) The power may not be exercised if the appellant has made an application to the Court of Appeal for bail in respect of the offence or offences towhich the appeal relates.564
(1F) It shall be a condition of bail granted in the exercise of the power that, unless a notice of appeal has previously been lodged in accordance with subsection (1) of section 18 of the Criminal Appeal Act 1968—
- (a)such a notice shall be so lodged within the period specified in subsection (2) of that section; and
- (b)not later than 14 days from the end of that period, the appellant shall lodge with the Crown Court a certificate from the registrar of criminal appeals that a notice of appeal was given within that perod.
(1G) If the Crown Court grants bail to a person in the exercise of the power, it may direct him to appear—
- (a)if a notice of appeal is lodged within the period specified in section 18(2) of the Criminal Appeal Act 1968 at such time and place as the Court of Appeal may require; and
- (b)if no such notice is lodged within that period, at such time and place as the Crown Court may require.".
- (a)in section 11—
- (i)in subsection (1), for the word "An" there shall be substituted the words "Subject to subsection (1A) below, an"; and
- (ii)the following subsection shall be inserted after that subsection
- "(1A) If the judge who passed the sentence grants a certificate that the case is fit for appeal under section 9 or 10 of this Act, an appeal lies under this section without the leave of the Court of Appeal." ;
§ 19.—(1) The Court of Appeal may, if they think fit—
- (a)grant an appellant bail pending the determination of his appeal; or
- (b)revoke bail granted to an appellant by the Crown Court under paragraph (f) of section 81(1) of the Supreme Court Act 1981; or
- (c)vary the conditions of bail granted to an appellant in the exercise of the power conferred by that paragraph.
§ (2) The powers conferred by subsection (1) above may be exercised—
- (a)on the application of an appellant; or
- (b)if it appears to the registrar of criminal appeals of the Court of Appeal (hereafter referred to as "the registrar") that any of them ought to be exercised, on a reference to the court by him." ;
- (c)the following paragraph shall be substituted for section 31(2)(e)—
(e)to exercise the powers conferred by section 19 of this Act;".
(3) The following subsection shall be inserted after section 30(7) of the Legal Aid Act 1974—
(7A) Where a certificate that a case is fit for appeal has been issued under the Criminal Appeal Act 1968 or under section 81(1B) of the Supreme Court Act 1981, legal aid which may be ordered to be given by a legal aid order under section 28(7) above shall include legal aid for the purposes of an application for the grat of bail by the Crown Court.".
§ Mr. Mayhew
The new clause derives from one originally moved by Lord Hutchinson of Lullington. It springs from a proposal from the parliamentary all-party penal affairs group. The intention of the sponsors of the 565 original amendment was that if a defendant intends to appeal, and the judge considers it a proper case, he should be able to grant bail pending the appeal immediately after completion of the hearing in the Crown court without further formality. To achieve that simple result, however, this rather daunting clause is necessary.
In order to ensure that the Court of Appeal is not faced with a flood of unmeritorious appeals, the grant of bail is made dependent on the grant of a certificate of fitness for appeal by the judge who presided at the trial or who passed sentence. The intending appellant may then apply for bail immediately. To prevent any delay, it will not be necessary for a notice of appeal to have been lodged at that stage, but to ensure that the offender carries out his stated intention to submit an appeal, the amendments provide that it shall be a condition of any bail granted that a notice of appeal shall be lodged within the period of 28 days prescribed in the Criminal Appeal Act 1968 for the lodging of such appeals. The overall effect will be to speed up the process for granting Crown court bail in those cases where the judge thinks it appropriate.
Under existing law a judge of the Crown court already has power to grant a certificate of fitness for appeal where the appeal is against conviction on a ground involving a question of fact or of mixed law and fact. The amendments give a judge power to certify the fitness for appeal of appeals against conviction involving a question of law alone. I should stress that such a certificate will be required only where the appellant desires to apply to the Crown court for bail pending appeal and will not affect the existing right of such offenders to appeal direct to the Court of Appeal without having to obtain the court's leave. A judge of the Crown court would also be given power to grant a certificate of fitness in relation to appeals against sentence. That places all applicants for bail pending appeal on the same footing. Legal aid is made available for the purposes of an application to the Crown court for the grant of bail.
There are provisions to ensure that there is no confusion over the responsibility of the two courts. I need not detail them. The amendments to schedule 15 and the long title are purely consequential.
§ Mr. Kilroy-Silk
I welcome these amendments. Although they were proposed by Lord Hutchinson on behalf of the parliamentary all-party penal affairs group, and opposed by the Government, it was one of the rare occasions when we managed to win a Division. In spite of that, I commend the Government for not having attempted to reverse the decision.
§ Question put and agreed to.