DECISIONS WHERE BAIL REFUSED ON PREVIOUS HEARING (Hansard, 28 June 1988)

§ Mrs. Ann Taylor

I beg to move amendment No. 278, in page 93, line 31, leave out 'but' and insert 'at the first hearing after that at which the court decided not to grant the defendant bail he may support an application for bail with any argument as to fact or law that he desires (whether or not he has advanced that argument previously). At subsequent hearings'. This is a replacement amendment to an earlier attempt by the Opposition to tackle the same problem. I hope that the amendment will not detain the House too long because, although it is important, I believe that it is one on which we are about to make progress.

I am sure that the House will agree that there should be no doubt that any individual's liberty is a fundamental right and one that is greatly cherished in this country. I am sure that the House will agree that only in the most serious cases should a person be deprived of their liberty. For that reason, when a person has been charged with an offence, it is his right, under the Bail Act 1976, to be awarded bail unless he comes within the listed exceptions. We are talking, of course, about people who are not convicted.

Since the implementation of the divisional court's decision, which has come to be known as the Nottingham justices' decision, many difficulties have arisen for those applying for bail. It has often become difficult for people to retain their liberty. The court's ruling that only in circumstances in which new information was available should it consider reversing the decision of a previous court, has acted as an effective block to many people being awarded bail. A study carried out by two American lawyers, Brink and Stone, for the Vera institute, as part of their work on bail for the Home Office, found that some courts have adopted a rigid view of that decision. In many cases, if a defendent's request for bail at the first hearing was denied, he was never permitted a second opportunity to re-present the facts.

The practical impact of this has been twofold. First, defendents have not applied for bail at initial hearings, so 296 as not to risk losing their only chance of success. The Brink and Stone study found that, in many areas, more than half the defendants remanded in custody on their first appearance had not asked for bail. Secondly, bail has been refused in cases in which it would have been appropriate to grant it because the lawyers have not had enough time to gather all the relevant facts. There can be no doubt that there have been cases in which defendents have been denied bail in one court when another magistrate would have granted it to them.

The sum total of all this has been to help to swell the number of prisoners on remand, and the impact of that on our prisons and on pressure on police cells has been evident recently.

We raised that issue in Committee. When we tried to persuade the Minister to reverse the Nottingham justices' decision, his attitude was that the Government did not think it right to allow individuals to shop around for a more sympathetic bench. That is to deny the nature of bail decisions, which are essentially subjective.

The Government attempted partly to deal with this problem by restating in clause 146 the courts' obligation to consider bail on every occasion, but we believe that that fails because it also restates that courts need not hear arguments of fact and of law that they have previously considered. As my right hon. and learned Friend the Member for Warley, West (Mr. Archer) said in Committee, it is difficult for the court or for lawyers to establish exactly what facts have already been presented to the court. The records of the court do not include notes of the facts that were relied on when a previous request for bail was made—and those involved in the process may be completely different. The magistrate, the clerk and even the defendant's lawyer may have changed.

Our amendment is an attempt at least to improve the present position. It proposes to oblige the courts to consider fact and law on the first two applications for bail. That would allow a solicitor to ask for bail on the first application without the fear that the client might lose any chance of bail should he not succeed, even if he had not had the opportunity to gather together all the facts. I understand that some courts—Newcastle-upon-Tyne is a case in point—already operate this procedure. It was the practice of the Nottingham magistrates at the time of the Nottingham justices' decision. Lord Justice Donaldson, as he then was, acknowledged that there were often further matters to be considered at a second hearing which had not been available at the first.

Not only will our amendent go some way to improving matters but it will bring practice into line with the original intention. I understand from our discussions with the Minister that we may be pushing against an open door tonight; he has said that he has reconsidered the matter since Committee, and we are grateful to his officials for their help with the technical wording of the amendment. Perhaps the Government do listen on occasion, and if the Minister accepts the amendment we shall welcome that.