§ Mr. Chris Mullin (Sunderland, South)I beg to move amendment No. 124, in page 164, line 18, leave out from 'section 38(1))' to end of line 19 and insert—
- '(a) before "the normal powers", there is inserted "Subject to subsection (1CA) below,",
- (b) after "section", in the first place where it occurs, there is inserted "37(7)(a)".'.
§ Madam Deputy SpeakerWith this it will be convenient to discuss the following amendments:
No. 123, in page 164, line 25, at end insert—
'(1CA) Where conditions are imposed by a custody officer, no condition shall apply for more than 28 days from the day on which conditions are first imposed on a person's bail without charge.'.No. 127, in page 164, line 28, after 'application', insert `by a constable or'.
§ Mr. MullinThe amendments would place a time limit of 28 days on bail conditions imposed by a custody officer before charge. At present the police can impose conditions on bail only after a suspect has been charged with an offence. The amendments would bring about quite a large change, but when the Select Committee on Home Affairs considered the Bill before Second Reading, we accepted that it was a necessary and logical part of the move towards charging by the Crown Prosecution Service. We were reassured by the fact that the Bill contains a number of safeguards to protect the suspect—bail must be imposed by a custody sergeant; it must have the consent of the prospective defendant; and if, after he has initially agreed, he thinks it is too onerous or that it continues for too long, he can apply to magistrates to have it discharged.
The Select Committee was concerned to note that as the Bill is drafted, there is no limit to the length of time for which pre-charge bail conditions can run. We think that that is too onerous. Also, it does not provide the police or the Crown Prosecution Service with any incentive to get a move on. As we know, the criminal justice system can sometimes move a mite slowly. We therefore proposed a 28-day limit, which we based on the evidence of Mr. John Burbeck, the chief constable of Warwickshire and the spokesman for the Association of Chief Police Officers on criminal justice matters, who I should have thought was an impeccable source.
I regret to say, however, that the Government rejected that. It has also since been drawn to my attention that some ACPO members are concerned that a 28-day limit is too tight in some cases. My amendment No. 127 attempts to address that concern by allowing for the police to apply to a magistrates court for a variation of bail conditions. It would then be for the court to determine whether it was appropriate to extend the conditions beyond 28 days.
It is not unreasonable that there should be some limit, given the delays endemic in our criminal justice system. I should have thought that the Government could quite easily concede the amendment without inflicting any damage on their objectives, and I look forward to hearing that they propose to do so.
§ Mr. GrieveThe hon. Member for Sunderland, South (Mr. Mullin) does a good service to the House in raising 960 his concerns. Our view has always been that there was great merit in introducing the principle of bail conditions prior to charge. That may be universally welcomed throughout the House. Clearly, it is desirable because, as we discussed on an earlier group of amendments, it would allow the police to come to immediate decisions. If they can impose bail conditions that secure public protection while they are reconsidering the matter, that is a useful tool.
Against that is the fact that an individual would have restrictions placed on his freedom to behave in a lawful fashion if he wishes, without ever having been charged with any offence. As usual, the House must balance those two factors. We are comfortable, if I may use the word, with the principle of introducing bail prior to charge, but we agree with the hon. Gentleman that the current position in the Bill, which allows that to continue for an indefinite period, is gravely unsatisfactory. We concur with him that 28 days is a perfectly logical cut-off for the matter to be reconsidered. So the hon. Gentleman has our support.
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We did not table an amendment to the clause on Report because, wishing to select what we thought were key areas, we were mindful of the fact that another place will have an opportunity to consider these issues with a great deal of legal expertise and experience. I would say to the Minister, however, that I am absolutely convinced that this is an issue which, unless the Government reconsider it, will not go unchallenged in the other place. I know that from consultations and discussions that I have had with my colleagues there, who have expressed their concern about this matter. I hope that the Minister will take this opportunity to give some assurance to the House that the Government will look further at this issue, because I cannot logically see why there should not be a 28-day cut-off point. Equally, if the Government wish to come back and say that another period of time would be appropriate, they could give us an alternative to consider.
The cases in which this provision would be likely to be used are plainly not going to be the most serious in terms of public protection issues. If there really were a key issue about protecting the public in a particular case, it would be a serious matter and the police would doubtless extend the detention period for a long time and try to make it their business to charge whenever possible because they would be concerned about someone being at liberty. On the other hand, the provision might be used in circumstances in which the police had anxieties about protecting the public or witnesses, but simply did not have the necessary evidence. That is a compelling reason for putting a finite limit on the period for which these restrictions can apply. I hope that we shall receive a positive response from the Minister on this issue. My view is that 28 days makes a lot of sense.
§ Mr. HeathI pay tribute to the Chairman of the Home Affairs Committee, the hon. Member for Sunderland, South (Mr. Mullin), not only for tabling the amendments but for the work of his Committee on the Bill. In the Standing Committee, we found many opportunities to quote the work of his Committee to good effect, and we are grateful to him and his colleagues.
961 I entirely agree with the hon. Gentleman on the specific points that he made. The strong argument for conditional bail before charge is that it would be a substitute for detention. I accept that, although I share some of the concerns expressed by the Select Committee that it might be used in circumstances in which there was insufficient evidence to charge. In such cases, the provision would become an onerous imposition on the freedom of an individual if it were used as a replacement for detention which could not be effected simply because there was no evidence. We have, however, had assurances from the Minister on that matter, and, for the moment, let us accept those assurances.
The idea that there should be no time limit on the imposition of conditional bail, however, seems entirely outwith the assertion that this is the more generous and liberal alternative to detention in custody. If a person were to be detained, there would be clearly delineated time limits on the period of detention, so whatever the arguments for conditional bail before charge, there ought to be a time limit on it. Whether 28 days is appropriate is a matter for discussion. It is, to some extent, an arbitrary limit. The advice from Mr. Burbeck was interesting and telling, given its source and the seniority of Mr. Burbeck and his responsibilities in ACPO. There should be a time limit. If the Minister is not prepared to accept the amendment, it is incumbent on him to explain how any time limit might be imposed, and what limit he would find acceptable. If he does not believe that any time limit is appropriate, that calls into question the whole proposition of conditional bail before charge.
The one further argument that I would adduce is that conditional bail lets the prosecuting authorities off the hook to a great extent. If our intention is to ensure that prosecutions are brought speedily and effectively, with the right charge at the right time, to allow an alternative of conditional bail over a prolonged period while the prosecuting services get their act together would be a retrograde step towards achieving the objectives, which I thought the Home Office and the Lord Chancellor's Department shared, of making progress towards the speedier justice system that we would all like to see.
§ Mr. GarnierI heartily agree with what the hon. Member for Somerton and Frome (Mr. Heath) has just said. My views would be different if we were talking about bail imposed by a court, but we are talking about bail imposed by a custody officer, who is not part of the judicial system but a policeman. To allow police officers to restrict the liberty of a citizen for an unlimited amount of time seems a strange thing for the House of Commons—which is, after all, the defender of the liberties of the subject—to want to become engaged in. I am all for administrative efficiency, but there comes a time when Members of Parliament have to work out where they belong.
Are we interested in administrative efficiency over and above the liberty of the subject? In saying that, I am interested not in giving improper protection to guilty people but in ensuring that legislation, particularly in the field of criminal justice, is properly thought about. The Minister is one of the more honourable and thoughtful members of the Government. I am very 962 concerned, however, that, for reasons that are administratively convenient and useful for the progress of legislation as a whole, he is allowing himself to whip through the House of Commons—I use the word "whip" with a small "w"—a piece of legislation that is careless of the rights of the innocent citizen.
I do not normally lose much sleep over the rights of people who have committed hideous offences, save that they should be incarcerated in humane conditions following a proper trial, but I am concerned that the clause, if unamended, will give powers to police officers—who, as individuals, might be entirely wonderful people—who are outside the judicial process and not susceptible to immediate judicial control. Cases might involve people being arrested at the dead of night, and in all sorts of conditions. We need to be careful before we dance gaily round the legislative maypole and allow clauses of this kind to go through unamended.
If I understood the Chairman of the Home Affairs Committee correctly, he does not intend to press the amendment to a vote.
§ Mr. MullinI did not say that.
§ Mr. GarnierI am glad of that. I think that the threat of the Chairman's non-promise not to put the matter to a vote—if I may use as many negatives as I possibly can—is something to which the Government ought to pay attention. I am not in control of the Government—or of the official Opposition, still less of the Liberal Democrat party—on these matters, but I believe that we all need to stop from time to time and to think a little more carefully about what is contained in huge great Bills such as this. Here we have a tiny little clause that has huge implications, and the burden of proof is firmly on the Government to demonstrate that what will happen is good and necessary.
§ Mr. CameronI agree with the hon. Member for Sunderland, South (Mr. Mullin) on whose very good Select Committee I sit. I want to add one point to what my hon. and learned Friend the Member for Harborough (Mr. Garnier) said. He said that having conditional bail without a time limit would improve administrative efficiency, and that that was why the Government were introducing the measure. There is a danger that some of the provisions in the Bill—this is one of them—will not improve administrative efficiency because they will almost make life too easy for the police.
I am a great supporter, indeed a great fan, of the police, and I want to ensure that they can do their job properly. What I heard in Committee and what I have heard today makes me worry about a number of provisions in the Bill, of which this is one. I fear that the police are being sent this message: "Do not worry about charging. You can keep this individual on bail with conditions indefinitely. Even when you are thinking about charging, you can keep him in custody for 36 rather than 24 hours. And when it comes to trial, do not worry about getting all the evidence ready, because previous convictions are now admissible in court." I do not necessarily think that all those changes are wrong, 963 but I see no case for conditions on bail without limit. The Select Committee heard compelling evidence in favour of a limit.
§ Mr. GarnierI agree, but whether we use my hon. Friend's argument or mine it seems clear that the measure should be examined carefully. May I suggest a solution? If unlimited police bail arrangements are to be introduced, could not the Government, here or in another place, give defendants the right to apply to the courts for limitation of those arrangements, or for them to be brought under the courts' control?
§ Mr. CameronThat is one possible answer. The Select Committee came up with four safeguards, the simplest of which is my favoured solution. A four-week limit would enable the police to know the time frame within which they must operate—that is, get on with the job we are talking about, which is getting the charge right. According to the Government, many of their proposals are intended to produce that result. I agree that the charge should be right in the first place, but there should be a time limit. That is why I support the amendment.
§ Hilary BennI echo the tributes paid to my hon. Friend the Member for Sunderland, South (Mr. Mullin) for the work that he and his colleagues do in general, and for the work they have done in respect of the Bill. I hope that he will feel—if not now, by the end of my brief speech—that this is a dialogue worth having. It certainly is from the Government's point of view.
We did of course note the Select Committee's perception of a risk that onerous conditions might be allowed to run indefinitely. It is arguable that that risk is slight, for although there is currently no limit on the duration of police bail it is not the practice of the police to bail suspects indefinitely; typically, they are bailed to return to the station on a specified date a few weeks hence. I should add, for the benefit of the hon. and learned Member for Harborough (Mr. Garnier) in particular, that the conditions can be imposed only with the suspect's consent. If the suspect does not want the conditions to be placed on him or her, it will fall to the police to charge the suspect and take him or her to court; it will then be for the magistrates to impose the conditions. That is an important safeguard. The conditions will be onerous only to the extent that the person concerned may be prepared to take them on as part of a conditional bail arrangement.
Notwithstanding what I have just said, the Government understand the reasons for the Select Committee's recommendation. We said in our response that we were considering it, and we are. We did not reject it, as was suggested by my hon. Friend the Member for Sunderland, South.
The limit most likely to be acceptable is a limit on the initial period of bail rather than on the duration of the conditions, renewable by the police after the suspect's return to the station. The specified period would need to be long enough to enable most cases to be determined without renewal. On the basis of charging pilots and discussions with the Crown Prosecution Service, it appears that, in most circumstances, a five-week period would be enough to enable charges to be brought. We have heard some debate about the appropriate length of 964 time. I hope, though, that my hon. Friend will be content to accept my assurance that the Select Committee's recommendations have not been rejected, and are being considered.
§ Mr. MullinI apologise if I have misrepresented the Government's position. We could argue about the number of days involved, but I want to know whether my hon. Friend is minded to impose a set period—a period renewable not at the discretion of the police but, if it must be renewed, at the discretion of the magistrates court.
§ Hilary BennThe honest answer is that, as I have said, we are considering the point that my hon. Friend has put both in the Select Committee and in discussion. He has clearly had an effect, and I hope that on that basis he will not press his amendment.
§ Mr. James Clappison (Hertsmere)I, too, urge the Minister to consider carefully the case put by the Select Committee Chairman.
The first safeguard that the Minister mentioned was the consent of the person concerned. Am I right in thinking that the alternative to the person's consent would be for that person to remain in custody? Need we take that into account in considering how much of a safeguard this is?
§ Hilary BennAs the hon. Gentleman will know, the period for which the person could be detained is governed by the limits we discussed in the context of an earlier clause. We are not talking about periods of four or five weeks but about much shorter periods, which currently depend on whether an arrestable or a serious arrestable offence is involved.
I hope that Members on both sides of the House will take what I have said at face value. I have said that we are considering the point that has been put. Let me add for the sake of completeness that amendment No. 127, which is grouped with amendment No. 124 but has not been referred to directly, would enable a constable as well as the suspect to apply to a magistrates court for the varying of pre-charge bail conditions. That appears to be superfluous, as the custody officer may, with the suspect's consent, vary the conditions in any event.
§ Mr. GarnierI do not know whether the Minister has finished his speech, but I want to ask him a question.
§ Hilary BennIf it will be helpful, I will give way.
§ Mr. GarnierThe Minister is living up to the encomium that I bestowed on him a few moments ago.
The Minister says that his proposal would affect only defendants who consented, but we read in the newspapers about cases that have gone wrong, and cases at which the Appeal Court may have to look for a second time. In such cases the defendant's consent is often in doubt. The defendant may suffer from some mental incapacity, although not to the extent that the police officer granting bail at the time thought him 965 mentally defective or deficient. I fear that a police officer might say, "Just sign here. You can come back at some future date when we have got in touch with you again."
§ Madam Deputy SpeakerOrder. This is a rather lengthy intervention.
§ Mr. GarnierI do not want to be rude, Madam Deputy Speaker, but this is quite a serious issue. The Minister has probably got the point by now, but I do not intervene just to delay the proceedings or to interfere with your rulings. I intervene because of a genuine concern not to waste everyone's time and money with Court of Appeal cases.
§ Hilary BennI thank the hon. and learned Gentleman for raising that point. I will reflect on it in the context of what I have said, namely that the suspect's consent will be needed. I will reflect on his point about what constitutes consent.
§ Mr. MullinI beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
It being two and a half hours after the commencement of proceedings, MADAM DEPUTY SPEAKER, pursuant to Order [this day] proceeded to put the Questions necessary for the disposal of the business to be concluded at that hour.