HL Deb 24 July 1972 vol 333 cc1044-57

LORD STOW HILL moved Amendment No. 33: After Clause 23 insert the following new clause

Bail: principles to be followed

.—(1) The following provisions of this section shall have effect in place of the provisions of section 18 of the Criminal Justice Act 1967. (2) For the purpose of this section a ' bail question ' means a question whether any person who has attained the age of seventeen (in this section referred to as ' such person ') and who is the subject of proceedings in any court having criminal jurisdiction (in this section referred to as ' the court ') shall or shall not be granted bail. (3) A bail question may arise at any time between the time when such person first appears before the court and the time when he commences to serve any sentence involving the loss of his liberty, or, if he gives notice of appeal, the time when the appeal is determined or abandoned. (4) A bail question shall be deemed to arise whenever such person is remanded or committed by the court or the proceedings of the court are adjourned. (5) Whenever a bail question arises and such person is not represented by counsel or a solicitor, the court shall either grant him bail or inform him that he is entitled to apply for bail and ask him whether he wishes to apply and the court may, if it considers it expedient so to do, make a legal aid order to enable an application for bail to be made. (6) Whenever a bail question arises there shall be a presumption in favour of the grant of bail and such presumption shall prevail unless the court is satisfied upon sufficient evidence that the grant of bail to such person would be likely to involve a substantial risk—

  1. (a) of interference with witnesses or potential witnesses;
  2. (b) to the safety of any person (including such person); or
  3. (c) to the security of property; or
  4. (d) that, notwithstanding any conditions imposed upon the grant of bail, such person would abscond; or
  5. (e) that it would be impracticable to obtain any report which the court requires.
(7) For the purposes of this section ' the grant of bail ' includes the grant thereof upon terms, that is to say, upon such conditions as appear to be reasonable or upon such person's own recognisance in a sum which, regard being had to his means, appears to be reasonable, or upon the provision of sufficient and satisfactory sureties in such sums as, regard being had to their means appear to be reasonable and ' the refusal of bail ' includes the grant of bail upon terms which such person states to be unacceptable to him. (8) A court which refuses bail solely upon the ground set out in paragraph (d) of subsection (6) above shall remand such person in custody for a specific period being no longer than appears to be necessary for the purpose of obtaining the report and may from time to time extend the said period by a further specific period for the same purpose. (9) Whenever a bail question arises and an application for bail is refused, the court shall, if such person is not represented by counsel or a solicitor or, if he is so represented and his counsel or solicitor so requests, give him a written notice stating which of the reasons set out in subsection (6) above is the court's reason for refusing him bail and informing him of his right to apply for bail to such court or judge as may be appropriate. (10) Where in any such case as is referred to in subsection (9) above the court is informed that such person intends to apply to another court or to a judge, as the case may be, for bail, the court may make a legal aid order to enable such application to be made and any court to which or judge to whom any application for bail is made may make a legal aid order to enable such application to be pursued. (11) The provision of Part IV of the Criminal Justice Act 1967 shall apply to a legal aid order made for the purposes of this section, so however that any such legal aid order may be limited to the purpose for which it is made.

The noble Lord said: I beg to move Amendment No. 33, which relates to the question of bail. I would describe it as an Amendment which seeks to codify the existing principles that should be applied when the question of bail in criminal cases is under consideration. An attempt was made in the Criminal Justice Act 1967, and that attempt at codification is contained in Section 18 of that Act. The new clause which I move is designed to replace Section 18 and to constitute, as it were, the full statement of those principles that ought to be applied when the question of bail is being dealt with. I should like to say at the outset that I think we are all, whether we agree with the Amendment or not, extremely indebted to Mr. Silkin, a very distinguished counsel, who moved this Amendment in another place and who is the draftsman of this new proposed clause. I will submit to your Lordships that when its constituent elements have been taken into account, it is really an extremely ingenious and helpful attempt to solve what is a very difficult problem indeed.

I am sure that it does not require argument to satisfy noble Lords, wherever they sit in this House, that the question of bail is one which causes the greatest possible anxiety, and I do not think that we can possibly say that we, by our legislative system, have resolved it. I think that would equally apply to the legislative systems of almost all countries in the world. Yesterday there was published an extremely helpful and valuable report, prepared by the Howard League for Penal Reform. I studied it last night, and as an introduction I would simply cull from it one figure to illustrate the magnitude and seriousness of the problem, a figure which was also quoted when this Amendment was under discussion in another place. By 1970—that is to say for the three years after Section 18 of the 1967 Act was passed—the number held in custody untried was 47,225. Of that number, 21,103 did not return to prison on conviction—in other words, they were found guilty but not given custodial sentences—and 2,472 were acquitted altogether. Thus, of those 47,000-odd prisoners who were kept in custody pending their trial, no less than 2,472 were completely innocent and were acquitted. I am quite sure that that is a figure which would shock anybody, wherever they sit in this House, as disclosing a situation utterly repugnant to our ideas. The conviction of an innocent person is the nightmare of every lawyer, and I think that it is almost as serious a nightmare that a person who is innocent should be deprived of his liberty even for a short time. I think it transpired in the discussion in the other place that that short time not infrequently extends to many weeks, and even months.

May I make one more quotation from the Howard League Report on the conditions? I do not know whether the noble Viscount, Lord Colville, or the noble and learned Lord the Lord Chancellor would think that this is an accurate statement. At any rate, it reads: In a remand prison he "— that is to say, the person confined— may be locked up in a cell for 23 hours a day, and sometimes with two or three prisoners in the same cell. I hope that if that is the case it only happens very rarely, and is something that cannot be avoided in the overcrowded conditions of our prisons. May I at once agree that a great effort has been made to try to improve the situation upon an administrative basis. Bail hostels have been instituted. If and in so far as custody is requisite in order to secure a medical report upon the accused person, special arrangements have been made, I understand, for early examination so that the person confined is deprived of his liberty for the smallest possible time. I think it will be common ground among us all that a great deal more both can be done and is being actively done, or at least explored, in the way of improving the administrative situation. I frankly concede that, and I think we would all be delighted to recognise that. But when all is said and done, there really is still this staggering figure in this very distressful situation.

With that introduction may I invite noble Lords to the detail of Mr. Silkin's attempt to approach this question? At the outset may I say that the existing Section 18 does not, I think I would be broadly fair in saying, place the onus either way. It is a matter for general consideration as to whether in a given case bail ought to be granted. There are limitations both ways; but there is no specific statement, no specific provision, in Section 18 to the effect that except in certain categories of cases bail ought to be granted unless good reasons are shown to the contrary.


The noble Lord may be wrong about that. I think that the first subsection of Section 18 does put an onus, and it is subject to certain exceptions in a later subsection. But of course Section 18 itself is limited to certain kinds of application for bail.


I would accept that, with qualification. I will not trouble your Lordships by reading Section 18. I do not think I will go into it further. The noble and learned Lord knows it as well as I do, and I have it here in my hand. I would not accept that the noble and learned Lord has stated with completeness the effect of Section 18, but I will not take time in discussing it. However Section 18 leaves it, Mr. Silkin very specifically in his subsection (6) provides that, there shall be a presumption in favour of the grant of bail and such presumption shall prevail unless the court is satisfied upon sufficient evidence that the grant of bail to such person would be likely to involve a substantial risk."— of the circumstances set out in paragraphs (a), (b), (c), (d) and (e). Unless therefore the court is satisfied on sufficient evidence that there is a substantial risk of some of the circumstances described in those paragraphs eventuating, bail must be granted. I give as an example paragraph (a), which deals with interference with witnesses or potential witnesses. That is a very important part of Mr. Silkin's proposal.

Your Lordships may feel slightly surprised if I, as the mover of this Amendment, venture to offer some criticism about the solution which Mr. Silkin proposes by those words. I feel a little uncertain as to precisely how the words " upon sufficient evidence " would operate. If one pictures a bench of justices—and I should say at once that, whereas Section 18 is directed primarily at justices' benches, Mr. Silkin's proposal is of general application and is not limited to summary proceedings—and the detective officer in charge of the case being asked by the presiding justice whether he thinks that any of these paragraphs are operative, the officer might simply say, and in most cases he probably would, " Yes, I have reason to think that the accused person, if granted bail, might attempt to interfere with witnesses."

I should have thought that on ordinary principles, this being a matter of criminal evidence, a statement of that sort could not be described as constituting evidence let alone " sufficient " evidence. I should have thought that, ordinarily, if that sort of answer were given by the detective officer in charge, the justices would feel obliged to grant bail. After all, although the problem is a very distressing one which we are all anxious to solve, we must keep the situation of the police in mind. Over and over again we say that the best way to reduce crime is to ensure the certainty of detection, and it would not be conducive to that end if, by changes in the law relating to bail, we made the task of the police so difficult that they could not really secure a higher ratio of convictions.

I respectfully offer that criticism. I think that this is a complicated and gallant attempt by Mr. Silkin, but I wonder whether those words are quite right, and whether one might cure the defect by eliminating the words " sufficient evidence " and using instead upon sufficient cause ", or something like that. That is a major feature to which I call attention. The question I should like to ask the Committee is: what is the value of that specific and precise change? I should have thought that it had very considerable value in that it precisely directs the justices' minds to the question they have to determine. If this provision is before them it cannot be thought by them that they adequately discharge their duty if they, as it were, take the matter on trust from the officer in charge with no sort of investigation at all. It may be that in a number of cases it will not result in any difference in their decision, but it will concentrate their minds on the real need in each case to assess, for example, the likelihood of interference or of tampering with Crown witnesses. I should hope that that would conduce to reducing the number of persons kept in custody and who subsequently turned out to be innocent. In spite of what the noble and learned Lord said, I still think that that is a major change from the existing Section 18.

The Amendment has a number of other features which, I submit, are of importance. I think experience shows that a number of people really do not know what their rights are. They do not press for bail; they have little idea that they are entitled to it, and they do not, as it were, make an active thrust to obtain their liberty by the granting of bail. They acquiesce in a situation in which they are taken away and incarcerated until their case is ready for trial. Mr. Silkin attempts to remedy that situation to some extent—and I think to quite a material extent—by ensuring that the question must be raised constantly, because subsection (4) states: A bail question shall be deemed to arise whenever such person is remanded or committed by the court or the proceedings of the court are adjourned. In other words, the matter of bail cannot go through unquestioned. Each time an incident of that sort takes place the question must be deemed to arise, and when the question is deemed to arise the court must grant the prisoner bail, or inform him that he is entitled to apply for bail. They must ask him whether he wishes to apply, and may also make a legal aid order to enable him to apply if he is the sort of person who could not adequately put forward his own claim.

Difficulty has often been found in finding those who would enter into recognisances. They may be away; it may be impossible to contact them; the individual may not know their addresses, and so on. Therefore, if one looks at subsection (7) one sees that the conditions under which the prisoner could be released are much more generously drawn. If bail is refused, or if conditions are imposed which he cannot accept, then, again, the court must first tell him which of the reasons under paragraphs (a), (b), (c), (d) or (e) of subsection (6) have motivated them into refusing him bail. I quoted paragraph (a); the others cover the possibility of a crime of violence, the likelihood that a person would abscond and so on, but I do not want to go through them again. When they have so informed him the court may make a legal aid order to enable him to make an application. They must tell him to what court he may go. He may apply to a judge in chambers; he may apply to the Crown Court. He must know what he can do, and if he does not know the way to do it he will probably be given a legal aid order to make sure that he goes through the right procedure. Equally, the judge to whom the application is made can also give him a legal aid order in order to ensure that he presents his case adequately before that judge or before the Crown Court, as the case may be.

Those, broadly speaking, are the proposals. I submit that they are really of the very greatest importance, because this is a matter which—I hope I do not over-repeat myself—directly touches the liberty of the individual. I submit that, so far as legal change is concerned, this new clause goes some considerable distance to ensure, first, that the court's mind is constantly directed to the problem, and, secondly, that it is brought home prominently to the minds of all courts—justices' courts and other courts which deal with the question—that they ought to grant bail unless there is good reason to think that one of the sets of situations described in paragraphs (a) to (e) of subsection (6) will be operative. They cannot take the question on trust. They must earnestly devote their minds to the question whether they ought to grant bail or whether they should refuse it on one of those grounds. If they refuse it there should be legal aid and the prisoner must be asked whether he wants to go to the judge in chambers or to the Crown Court. He should be told about his rights and given legal aid to enable him to enforce them. That is the substance of this Amendment.

Your Lordships may ask: Having criticised the Amendment, do you propose to move it? It is perhaps a little like the clergyman's egg. It is extremely good, I should have thought, possibly except for that slight blemish, and I would respectfully press upon Ministers on the Government Bench that they should give it very serious consideration. Then, if they agree on further reflection that the defect can be cured—it might be cured on Report stage—I am sure that both from this side of the Committee and also from Mr. Silkin they will receive every possible consideration. With that argument in its favour I respectfully commend the Amendment to your Lordships. I beg to move.

3.20 p.m.


Perhaps a former Lord Chancellor may add a few words to the considerations put before the Committee by my noble friend Lord Stow Hill. As a former Home Secretary my noble friend has explained with his usual clarity the nature of the Amendment before the Committee, and I certainly shall not repeat anything which he has said. As Lord Chancellor I was very worried about bail, because I had a number of representations made to me, some by the judges saying that magistrates were granting bail much too often and people were skipping their bail and committing further offences while on bail; others from the National Council for Civil Liberties and similar organisations blaming the justices for not granting bail often enough. In the circumstances, when addressing the annual general meeting of the Magistrates' Association I said: All I can tell you is what I would say if I was a magistrate. I should say, ' Of course it is unfortunate if a man who is given bail skips his bail. Of course it is unfortunate if a man who is given bail commits a further offence while on bail. Of course it is unfortunate if a man who is refused bail is acquitted on his trial, so that an innocent man has been sent to prison for some weeks. It may even be unfortunate if a man who is refused bail is not given a custodial sentence at his trial '. I should be able to say I should like to know how the proportion of those accused who have been given bail compares with what it was before the Act; I should like to know how many of those who are given bail do not appear at their trial; I should like to know how many of all those who are given bail commit further offences while they are on bail; and I should like to know how many of all those who are refused bail are subsequently acquitted ", and so on. I said I would ask the Home Secretary for the information and would let the Magistrates' Association know what the answers were.

I was a little surprised to be told by the Home Secretary, though I passed the information on to the Magistrates' Association, that the Home Office did not know how many of those who were given bail skipped their bail; and the Home Office did not know how many of those who were granted bail committed other offences while on bail. One question I should like to ask is: even now, do the Home Office know how many of those who are granted bail skip their bail? The information must be there.


I think I can answer that straight away. I made a speech about bail to the Gloucestershire magistrates about this time last year, I think, and the figure I gave in my speech was 3 per cent. I take it I got that from the Home Office, because I do not think I invented it.


I am glad to hear that the knowledge of the Home Office is greater than it was. If I may then refer to the publication of the Howard League of yesterday, to which my noble friend referred, they point out in the first place how much research work has been done in this field. They refer first of all to the study made by Professor Gibbens and Mrs. Dell of 25 per cent. of the annual intake at Holloway Prison. One matter which strikes anyone who looks into the position about bail is that there are three or four very disadvantaged groups. One group, curiously enough, is first offenders; secondly, women; thirdly, young people; and, fourthly, almost anybody who takes any part in any kind of political demonstration. This survey showed that a far greater number of female first offenders reach prison by way of remand than by way of sentence; and this is likely to be true of men also. In the year's sample, 29 first offenders were sentenced to imprisonment and 10 were imprisoned in default of fines; but 161 were remanded in custody and not subsequently detained. Among women sentenced to prison, the proportion of first offenders was 22 per cent.; and for those remanded in custody and not subsequently sentenced to imprisonment the proportion was 42 per cent. This, too, I think the Committee may find interesting: that of 94 first offenders—94 prisoners without previous convictions—who were remanded untried, only 7 were subsequently sentenced to imprisonment and 14 were acquitted. Substantially the same has been shown to be true in the case of young offenders. We know the proportion of crimes which are committed by those between 17 and 20; and the percentage of those who are remanded in custody is very much greater than that.

The inquiries made by the Cobden Trust, I think have also shown three things. The first is that when the police oppose bail stipendiary magistrates grant bail twice as often as lay justices, which perhaps tends to show that lay justices feel that they must not contradict anything which the police suggest—and, as the Committee is bound to recognise, once local police realise that on the question of bail their bench is always going to do what they say, this of course gives the police enormous power. Secondly, when police oppose bail, represented defendants get bail twice as often as those who are unrepresented; and, perhaps the most important of the three, two-thirds of all the people considered for bail are unrepresented. I am not at all sure that I was not guilty of talking to the magistrates about those whose applications for bail were successful and about those who were not, but of course the vital numbers are those who never apply for bail because they do not know that they can. In a recent debate about contraceptives I ventured to suggest that highly educated people tend much too much to assume that what they know is generally known. There are many unrepresented people who simply do not know that what the court is considering is whether they shall be incarcerated in prison before they are tried or not; and fairly high appear to be the number of those who, asked subsequently, " Did you apply for bail? " simply said, " What is bail? " Studies have shown that in many courts the chairman in fact does not explain at all what is going on in the court, or what bail is, or that the accused are entitled to be considered for it.

Another thing which has impressed me a good deal is that the study in Holloway showed that, out of the 527 women there whose cases were being inquired into, there are 106 who totally deny their guilt to-day. Of these, 56 pleaded guilty, and 47 pleaded not guilty, and in three cases there was no information. Those pleading guilty gave a variety of reasons for doing so: 17 out of the 56 claimed that the police had advised or pressured them to do so; 8 said there was no point in defending a case where it was simply their word against that of the police; 5 said they pleaded guilty to avoid a remand and get the case over with; and 5 said they had done so for fear of getting a harsher sentence if they pleaded not guilty. Of course, those who have legal advice before pleading are much less likely to give in to the temptation to plead guilty to an offence they believe they have not committed.

What has struck me most about the whole problem is this. All through the discussion on this question on the Committee stage of the Criminal Justice Bill 1967 in the other place, there were two men who throughout said that Clause 18 of that Bill was a mistake. That was a Bill which started by providing that bail should be mandatory in certain classes of case, which then provided a whole list of exceptions, and which then dealt with a couple of odd bits and pieces. These two men, if I have understood them rightly, said throughout, " What we really need is the law, either the law now or what it ought to be, put into an Act of Parliament that people can read, starting with the general principles; and, of course, the first general principle must be that, ever since Magna Carta, much the most important of any civil liberties that Englishmen have is the right not to be incarcerated in prison, unless it has been shown that you have done something wrong; and while there must in some cases be exceptions to that, these exceptions ought to be closely safeguarded and ought to be as few as possible." The two men who said that throughout were Mr. Silkin, Q.C., from the Government side of the House, and Mr. Hogg (as he then was) from the Opposition side of the House. The noble and learned Lord the present Lord Chancellor said: In truth and in fact, I am confident that the only reasons for which magistrates ought ever, under the existing law or under any proposed law, to refuse to give bail are primarily that the man proposes to jump bail; secondly, that the man proposes to interfere with witnesses in one way or the other; and, thirdly, that the man will commit an offence while on bail. Later he said: … my fear—and I understood it to be echoed by the honourable and learned Member for Dulwich "— that is, Mr. Silkin— is that this clause, looked at plainly as a piece of English, which is how the magistrates will have to look at it, will divert the magistrates' attention from the right points and attract their attention to the wrong points. It seemed to me that the honourable and learned Member for Dulwich had the right answer. They ought to be told in the Statute what ought to govern their decision. I have stated that now three times in order to save time, and I shall not state it again."—[OFFICIAL REPORT, Standing Committee A, 15/2/67; cols. 438 and 448.] Support was also given to that view by the former Attorney General, the late Sir John Hobson, who said: By and large, I find myself in substantial agreement with the honourable and learned Member for Dulwich. What he suggests is a sensible way of dealing with it. On consideration it might be possible to devise a different framework, but on the whole this framework seems sensible."—[OFFICIAL REPORT, Standing Committee A, 15/2/67; col. 444.] I have come to the conclusion that they were right and that what we ought to be doing is what this clause seeks to do, namely, to set out the principles and to show clearly where the onus lies. The figures referred to by my noble friend are, on the face of them, rather shocking. This applies particularly at the present time when these people, mainly unrepresentative and with no legal advice, may spend 23 hours with one or two other people in a cell. Every working day of the year there are about eight people who have done nothing wrong and who are in this position and are going to be acquitted.

As I have said, I would myself attach perhaps the most importance in this Amendment to the point that when people first appear in court they should be told they have a right to ask to be at liberty before they are tried. One thing that all lawyers know is that it is much more difficult—I do not know how many convicted persons would have been acquitted if they had had bail—to conduct your defence from a prison cell than when you are on bail. Not only are solicitors, not unnaturally, unable to spend more than a certain amount of time visiting prisons but there are cases in which the accused is the only man who can get the evidence. He knows by sight who the vital witness is; he knows the street in which he lives but he does not know his name. It is no good asking a solicitor to go to look for him because the solicitor does not know him by sight and would not recognise him. We must all, therefore, realise that it is a great hardship to a man to have to conduct his defence from a prison cell, particularly in present conditions. That is why I personally attach the most importance to legal aid and to people being told when they first appear in court that they are prima facie entitled to bail.

The only argument that I have heard on this Bill to the contrary was the remarkable suggestion by the Government that persons must not be told that they are entitled to apply for bail because the magistrates might already have decided not to give them bail. I have always thought that people occupying judicial positions did not come to a final conclusion until they had heard the parties to the application. Everybody ought to know—but I am afraid that they do not—that prima facie they are entitled to bail. That position will never be reached unless that is explained to them. The best courts would do that now if persons charged were entitled to legal aid.


Might I ask a question for clarification before the noble Viscount replies? There is a point here, and I think the noble Lord, Lord Stow Hill, made it, about a legal aid order to enable applications for bail to be made. The court having decided whether or not bail should be granted, at what point should a person be given legal aid and where should he be while legal aid is being arranged?


I am not sure that I quite understood that question. If the court is going to grant bail there is no point in giving legal aid; it is going to be given anyway unless the court is going to make the bail subject to onerous conditions. Secondly, at the moment magistrates do not have the right to give legal aid unless they have already given it for the purpose of representation in the case. That will be remedied when the Legal Advice and Assistance Bill which we have been discussing is given the Royal Assent. It will go into the next batch of Royal Assents, God willing. If there is a doubt as to whether or not a person should get bail, the thing to do is to assign the court solicitor under the Legal Aid and Advice Act when the Bill is enacted. The third thing is that since the Courts Act 1971, if you give legal aid for the purpose of representation it covers an application for bail automatically either at a magistrates' court or, if the magistrates do not grant it, at the Crown Court. Acting as a long-stop—and this is the last point—there is the official solicitor and the Judge in Chambers, if all else fails. But magistrates need not worry about that because that is done automatically at the end.


In order that the House should hear a Statement on the industrial situation I beg to move that this House do now resume.

House resumed.