HL Deb 06 April 1976 vol 369 cc1516-75

2.54 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(Lord Harris of Greenwich.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Earl of Listowel in the Chair.]

Clause 1 [Meaning of "bail in criminal proceedings"]:

On Question, Whether Clause 1 shall stand part of the Bill?


I attended the Second Reading of this Bill, and I had the pleasure of hearing the speeches of my noble friend Lord Harris of Greenwich and of the noble and learned Lord, Lord Hailsham, but only part of the speech of the noble Lord, Lord Wigoder, because then, unfortunately, I had to keep an appointment as Chancellor of the Open University and I was therefore unable to take part in the debate on Second Reading. So, as Clause 1 starts off the framework of the Bill, may I say that this is of course a Bill I greatly welcome. Indeed, I have been asked sometimes in the past few years, "If you could choose one reform in the law to put through, what would it be?", and I have always said, "Legal aid for bail". But may I raise two possible omissions from the Bill, not necessarily expecting my noble friend to deal with them today?

The first is that we know that now, in London, a man on remand will ordinarily be tried within, I think it is, 11.8 weeks—just on three months—but there is a certain number of cases in which the period involved is very much longer. I have known a year, I have known 18 months. Week after week, month after month, the police go on saying, "Our inquiries are not yet complete", or "We are not yet ready". This is very difficult, I think, for justices of the peace to deal with. So far as I know, this Government are still the Government of Scotland, and therefore they must be aware that since 1711 it has been the law in Scotland that unless a man's trial is completed within 110 days he has to be released. This is peremptory, mandatory and unqualified except only for illness or if the prosecution can satisfy the court that it is in no way their fault. If this works so well in Scotland, ought we not to consider it here in order to put some pressure on the police to bring a case to trial by a certain date, which at present in a certain number of cases they do not do?

The second omission on which I would ask my noble friend to comment if he would is that nowhere does this Bill provide for compensation. Of course, in this House we can extend the Long Title of the Bill. Last night, according to The Times, the Prime Minister made a speech, and in the course of his speech he said this: Let us set ourselves some aims. Let us root out injustice and put it right wherever we can". Suppose a man who is a completely innocent man is remanded—ordinarily, in London, as I say, for three months—and then, when he comes up for his trial, the police say, "Sorry, Chum; we have got the wrong man—we offer no evidence." It is, I think, a crying and manifest injustice that at the moment this man gets no compensation at all. First of all, in most cases he loses his job. Where work has to be done, you cannot really expect employers to keep a place open for three months. Then he finds himself in great difficulties in that he gets behindhand with his rent; as he has not been earning anything, he gets into debt—so far as I have been able to ascertain it is not a practice of the Supplementary Benefits Commission to provide supplementary benefits because the husband is in prison—and in some cases he loses his home.

Is this not a crying injustice in the case of a man who is completely innocent? I am not talking of cases where lawyers say, "He was lucky to get off", but of those cases where the prosecution themselves agree, "This man is innocent, always was innocent and ought not to have been prosecuted", and where, as a result, the man serves three months in prison, he loses his job, and perhaps his home as well. Is it not a crying injustice that he is denied any compensation at all? The police do not have to say anything; they just shrug their shoulders and go away. Can my noble friend say something on those two points?


My noble and learned friend has raised two questions. One relates to the practice in Scotland, and I will gladly go into this. I think it would be difficult to move immediately in the direction that my noble and learned friend desires, but, nevertheless, he has raised a question which I cannot pretend to be competent to deal with today, and I will certainly look into the matter.

So far as compensation is concerned, as my noble and learned friend rightly says, this raises major issues concerning justice done to individuals finding themselves in a predicament of this sort. Clearly a provision of this kind goes rather wider than the Bill, as my noble and learned friend has indeed pointed out. I will look into the matter with even greater vigour, given the fact that the words of my right honourable friend the Prime Minister were called in aid. At a time like this it is appropriate to pay even more attention to the words of Prime Ministers than is normally the case.


I am sorry to intervene in a matter which seems to concern the legal fraternity more than an ordinary layman like myself; but I am bound to say that I was astonished far the observation of my noble and learned friend Lord Gardiner. If what he has stated is consistent with the facts, then a very serious act of injustice appears to continue in the United Kingdom—or, at any rate, South of the Border. If I may be permitted to say so with the utmost restraint, I would not regard the reply from my noble friend the Minister as adequate. To say that he will look into a matter of this kind seems in the circumstances to be hardly the kind of answer that is satisfactory. At least we should be assured that as soon as is practicable there will be a satisfactory response to the observations made by my noble and learned friend. I have the feeling that what he mentioned is practically unknown in your Lordships' House to all but members of the legal profession, and in the circumstances perhaps my noble friend the Minister will give an assurance to the Committee that within the next few weeks your Lordships' House will be more fully informed on the intentions of the Government.


If my noble friend Lord Harris is going to ask his right honourable friend to look into this matter, I hope he will look into what happens in other countries. I am referring particularly to compensation for the detention of people who are subsequently proved to be innocent. If he looks into what happens in Japan—from whom also we can learn—he will find that a person subjected to any kind of detention who is subsequently proved to be innocent is eligible for compensation.


I am reluctant to intervene in this debate, especially in view of the extreme eminence and wisdom of those who have participated in it. But, in the absence of the noble Lord the Leader of the House, I must draw the attention of the Minister to the fact that we are discussing whether Clause 1 shall stand part of the Bill, and the sale purview of Clause 1 standing part on the Committee stage of this Bill is the meaning of "bail in criminal proceedings". If we are now going to discuss what is done in Japan about compensating innocent prisoners who are subsequently found not guilty, we may be here until midnight. But I must say, with great respect to the Committee, that I shall not be here at midnight.


The first point I was going to make to my noble friend Lord Shinwell was a slightly less vigorous retort than that given by the noble and learned Lord, Lord Hailsham of Saint Marylebone. The point raised by my noble and learned friend Lord Gardiner goes—as he rightly pointed out—wider than the Long Title of the Bill. It goes a great deal wider than Clause 1. As he has raised the issue—and I know this is a matter which has concerned many people for a substantial period of time—I will look into it. I reply in similar terms to my noble friend Lady Wootton. The fact is that these matters go far wider than this Bill, which relates to bail and not to compensation. The point having been raised, I will gladly look into it.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 [General provisions]:

3.4 p.m.

Lord FOOT moved Amendment No. 1: Page 3, line 24, leave out from ("custody") to end of line 25.

The noble Lord said: May I start by apologising to the Minister for putting down these rather numerous Amendments a very late stage, for he did not have notice of them until last night. That was due to reasons which were not really within my control, but I apologise for the late notice of them. Secondly, as the Minister will remember, I gave this Bill a very general welcome on Second Reading, and I think I was the only person who gave it an unreserved welcome from any part of the House, except the Minister himself.

I do not resile in any way from what I said then. I wholly approve of the general object of this Bill, which is to avoid sending people to prison except when they have been lawfully sentenced by a court of law, or where their being contained in custody is essential to the protection of the public or the due administration of the law. I fully accept the second object of the Bill, which is to create a presumption in favour of bail, subject to exceptional conditions which are referred to in Schedule 1.

In saying that, may I also say as a preliminary comment that I fully agree with the objects of this Bill; that is, first, as the Minister explained, to try to reduce the prison population, and secondly—much more important to my mind—the defence of civil liberties. Therefore, I am entirely with the Government in the spirit in which this Bill has been presented. Although there are a large number of Amendments in my name, substantially there are only four. Perhaps I could give the noble and learned Lord, Lord Hailsham of Saint Marylebone, the reassurance that I certainly will not be keeping him here until midnight.

In moving these Amendments, I shall do little more than pose the questions which they raise rather than argue the case in any detail in order to ventilate the questions and get the reactions of the Government to these Amendments. If at a later stage in the Bill there seems to be an opportunity of making any advance upon these lines, perhaps that will be the occasion for more detailed consideration of these matters. The Amendment to which I am now speaking is an Amendment to Clause 3 of the Bill, but it is connected with Clause 6. In Amendment No. 5 I propose that Clause 6 should be left out. If I may, I will deal with those two Amendments together, because the first one, to Clause 3, is subsidiary to the deletion of Clause 6. Clause 6 makes absconding, failure to surrender to the order of bail, a substantive offence for the first time in the law of this land. That provision is of course based upon the conclusions which were arrived at by the Working Party which produced the Report on Bail Procedures in Magistrates' Courts. I can well understand the logic of the argument: if you are to abolish personal recognisance, as this Bill proposes, you ought to substitute something for it—some other kind of penalty—in order to deter people from absconding. I also understand that failing to surrender to bail, failing to deliver yourself to custody when required to by a court, is a serious matter. I do not dissent from that in any way.

Against that, I suggest that there are certain considerations which ought to be borne in mind. The first is that the whole ethos of the Bill is to try to prevent people going to prison who are now being sent there, with all the devastating effects that remand in custody can have on the individual—the kind of effect to which the noble and learned Lord, Lord Gardiner, referred just now. In introducing a Bill which has this as one of its prime purposes, it is a little odd, is it not, that one should actually be creating a new offence for which people can be sent to prison? We are living in a time when many people engaged in the field of criminal law and penal policy are considering very anxiously the possibility of "de-criminalisation", or reducing the number of criminal offences, especially those for which people can be sent to prison. It is a little anomalous to find that we are creating a new offence, and one for which a person can go to prison. If that is so, it follows that if this new offence is created for which people can be sent to prison, one must be able to show that it will serve some useful purpose. I take it that the purpose the creation of this new offence is designed to achieve is to deter people from absconding and failing to surrender to their bail. But will it do that?

As I understand it, we have not a great deal of information about this. There is a great lack of statistical information as to the effect of imposing a deterrent penalty of this kind upon people who might be considering absconding. Possibly the simplest way in which I can put the argument to the Committee would be by quoting from some critical comments made upon Clause 6 by Mrs. Suzanne Dell in the British Journal of Criminology in January 1975—it might be January 1976; I am not sure about the date. The Minister may be familiar with this magazine but, with the leave of the Committee, I should like to quote a few sentences from Mrs. Dell's article, which express better than I could the doubts and hesitations as to whether the creation of this new offence will in fact have any deterrent effect at all. She said this: The main source of information is Home Office research in London, which in 1969 showed a non-appearance rate of 3 per cent. among those hailed on committal and 6 per cent. among those bailed for further hearing before the magistrates. A high proportion of those who did not reappear before magistrates—27 per cent.—were charged with nothing more serious than drunkenness. One can imagine that many of these were not deliberately seeking to avoid taking their trial but were, with no deliberation at all, sleeping off the effects of further drinking episodes. Can it he sensible to make their failure to come to court imprisonable when the drunkenness offence itself is not imprisonable?

Then she went on to deal with the more serious offender and said this: Whatever its effect upon the petty offender, would making absconding into a prison-able offence"— I am sorry that I am hesitating over this but my copy is not very clear— at least deter the more serious offender from non-appearance? There seems no reason to believe so. People fail to appear for many reasons and in many circumstances. Some may genuinely forget and they include the drugged as well as the drunk. Some will deliberately disappear and abscond, but others will remain where they are, mistakenly hoping"— and these are the inadequate people— that by not going to court the threatening event may be persuaded to go away. But an element in the thinking of any person who intentionally fails to reappear must be a belief, however irrational, that the police will not catch up with them. If a bail defendant believes that he can evade the police on the charge of which he is accused, he will not be deterred from absconding by the knowledge that this is also an offence. I think that argument has considerable force, and if it be the fact that creating this new offence will not have any significant effect in deterring people from absconding, then the creation of the new offence is to be regretted. It seems to me that the onus of satisfying the Committee that we should do so rests upon the Government. They are proposing something positive, and I submit that the defence of that proposal rests upon them.

May I conclude by saying that if the personal recognisance is abolished and no substantive new offence is created, the present procedures already provide for penalties for the person who absconds. They provide those in two ways. One is that if a person fails to answer to his bail and is subsequently arrested, when he is brought before the court and the question has to be decided as to whether he will be remanded in custody, of course he will be remanded in custody because he has broken his bail and therefore may be detained in custody for an indeterminate period of time and thereby pay the penalty of failing to answer to his bail. That is one penalty which a person, as it were, imposes on himself if he does not comply with the terms of his bail. In passing, may I make a reference to the Amendment appearing in the names of the noble and learned Lord, Lord Hailsham of Saint Marylebone, and the noble Earl, Lord Mansfield, which is Amendment No. 15. It is there proposed that: In applying their minds to the question whether a risk of the matters referred to in paragraph 1 of this Schedule be unacceptable the court shall take account of all relevant considerations…. Among the other matters the court shall take account of is, the question whether the accused has at any time failed to comply with the conditions of bail including the obligation to present himself at court". I draw attention to that because if the Amendment is subsequently carried it only reinforces the point I am trying to make, which is that the courts will clearly refuse bail to somebody who has once failed to surrender to it. Therefore there cannot be very much doubt that that penalty will follow.

The second consideration is this. Under our present procedures, if a man fails to surrender to his bail, is then arrested and brought to trial on the substantive offence and is convicted, when the judge comes to deal with him the judge is surely entitled to have regard to all the circumstances, including the fact that he failed to surrender to his bail, in deciding the penalty of imprisonment, or otherwise, which is appropriate to the case. I do not know whether, theoretically, that is right, but in practice it must surely be that the judge would take that matter into consideration when deciding what is the appropriate penalty to be inflicted. I have developed the theme longer than I intended, and perhaps I can leave it at that. I beg to move.


May I support this Amendment in a sentence, for the reasons that the noble Lord, Lord Foot, so clearly explained? It was, I think, a justice of the peace who described this as a sledgehammer to crack a nut, and I think that is just about the size of it.


It is not very often—indeed, it is very rare—that I disagree with what the noble and learned Lord, Lord Gardiner, says, and I agree with what my noble friend opposite, if I may so call him, says. I think that the Amendment sidesteps the real issue here. As I understand it, its purpose is to give alleviation, to a very considerable extent, to a person who is brought before the courts, and not to impose upon him or her a kind of penalty by creating recognisances. The Bill contains sufficient provision to enable a court to exercise its own discretion in respect of what penalty it should impose. I have very great faith, as I believe have most people in this country, in the ability of our magistrates to bring to their conclusions a considerable amount of experience and understanding, and they give invaluable service to the country.

I think it would generally be agreed that the Bill as it stands contains sufficient protection for a person who, inadvertently, or for some explicable reason, is not present at the time when he is due to appear. If such a person were to present his case to the magistrates, I do not doubt that their decision would be a just one and not one which was intended to increase the prison population or to make that person suffer. That is the real argument against what is being suggested now. Either recognisances should he required, or they should not. I think there has been ample evidence—and I do not propose to go through the whole story again—that the present system has not been a satisfactory one, and consequently something is needed to replace it. But I believe that the Bill contains a necessary and workable method of dealing with the situation.

3.24 p.m.


The noble Lord, Lord Foot, was kind enough to apologise for having tabled this and other Amendments rather late. I hope he will forgive me if, on one or two of his later Amendments, I have to say that we must look into them more closely, because it would be impossible to give an answer today, given the rather limited amount of time that we have had to deal with them. The noble Lord, Lord Foot, has moved an Amendment the effect of which, so far as Clause 3 is concerned, is that a person granted bail in criminal proceedings will be under a duty to surrender to custody, and the remainder of subsection (1) will be deleted. The question then arises: What is to be done to a person in this category who defies, perhaps quite deliberately, a decision to appear in court on a certain date and at a particular time? The answer really is nothing, as the effect would be to remove the criminal offence, because taken to- gether with this Amendment is the other Amendment to which the noble Lord, Lord Foot, has also spoken, which seeks to delete Clause 6, which would make absconding while on bail an offence.

The Government do not consider that the absence of any sanction at all for failure to appear at the time and place specified would be compatible—this is the point which my noble friend Lord Janner has just made—with the presumption in the Bill, that a defendant should be granted bail without first having applied for it. The introduction of the offence, which was generally welcomed by those who spoke earlier on the Bill, though it is fair to say not by the noble Lord, Lord Foot, has the further advantage of deterring from absconding a person released on bail and thereby makes it more likely that the courts will be willing to grant hail in a marginal case. If I may say so to the noble Lord—he and I agree on the general principle of this Bill—this is an issue of central significance, because the court will have discretion in a marginal case as to whether or not to grant a person bail.

I am bound to say that if the price of failure to abide by a decision of the court, that a person should appear at a certain time, is that nothing at all of a disagreeable character will follow, then in many marginal cases the court will decide not to grant bail. Therefore, though the intentions of the noble Lord, Lord Foot, are admirable, I believe that the effect of this Amendment would be exactly the reverse of what he imagines. I think that in more cases people would be remanded in custody than granted hail. One has to keep a proper balance here. One has to bear in mind that justices will have to make difficult decisions in borderline cases, and I believe that the existence of an offence such as that specified in Clause 6 will give that degree of encouragement to them to grant bail in such cases, of which there will be many. The noble Lord, Lord Foot, and I am sure the overwhelming majority of your Lordships, agree that we want fewer people remanded in custody, but I fear that the consequence of this Amendment would be exactly the reverse.


I think most of your Lordships are keen that we should, as it were, empty the prisons so far as we can of people who need not be in them, but there comes a time when one has to pause and consider whether a proposed action is in the public interest. If the method of emptying the prisons is to abolish an offence, then one has to consider that very carefully indeed. At the moment, the sanction against somebody who fails to turn up for his trial is that he can thereafter be convicted of an offence and dealt with on the merits. I suppose that, during my career at the Bar, I dealt with as many bail applications as any—in my early days, in all cases for applicants for bail; later on, usually, for the Director of Public Prosecutions stoutly maintaining the opposite, and recently in my capacity as a sheriff in Scotland having to decide the issue.

I agree entirely with the noble Lord, Lord Foot, that most of the people one deals with are not so much evil as inadequate people and that the offences which they commit are the result of their inadequacy. Certainly in my experience it is that very inadequacy which tempts them not to turn up at the appointed time and place to take part in their trial, because the very reasons which tempt them to commit offences in the first place are the very reasons which tempt them not to face reality thereafter.

So far as the duty to the public is concerned, the criminal law has just as much of a duty to the public as to the offender. A court will convene witnesses at considerable expense and no little inconvenience who will all turn up: and jurors and even, I dare say, lawyers will attend the court. The accused does not arrive, and what happens? Nothing. When the accused is eventually apprehended he can then, apparently, as some kind of deterrent to others, be kept inside until eventually his trial gets under way.

That is putting the matter at its lowest. Unfortunately, there are a number of offenders who are not so much deficient in character or resolution as very evil men indeed. Very often they know that if they fail to turn up or fail to have their trial heard at a particular time, witnesses who may either have to be brought from abroad or who else may be very frightened people indeed will not turn up on a second occasion. If in those circumstances the criminal failed to turn up, I suggest it would be making a mockery of the criminal law if one could do nothing but exclaim, "Naughty boy!" and thereafter keep him inside until his trial.

I do not know whether I understood aright the noble Lord when apparently he suggested that failure to attend the trial could be reflected in the eventual sentence. If he meant that—and I see that the noble Lord is nodding his head in a vertical direction—I wholly deplore it. It cannot be right for a criminal court when, at the end of the day, it considers the circumstances and antecedents of the defendant who has been convicted, then to go into the matter and sentence him for an offence with which he has never been charged and for which counsel or the solicitor who appears for him at his criminal trial may not have been briefed and may not be able to put forward his side of the story, and in any event will probably not put it forward in the way that he would like. On reflection, I very much hope that the noble Lord will withdraw this series of amendments.


Certainly I shall not pursue these Amendments, but may I make one or two remarks in reply. On the point that he made, I should like to say to the noble Earl that there are many evil people who may be inclined to avoid surrendering to their bail in the hope that witnesses may be deterred from appearing on a second occasion or in the hope that potential witnesses may go abroad. I would say only this to the noble Earl: does he really suppose that very evil people like that will be deterred from turning up and surrendering to their bail on, presumably, a very serious charge by the fact that on summary conviction for failing to turn up they can get up to three months' imprisonment? I do not believe that that is a consideration which would operate in the minds of people of that kind.

However, I do not want to protract the argument. I can well see the force of what the noble Lord, Lord Harris of Greenwich, has said; that is, that if there is no clear penalty for failing to turn up for your trial, in borderline cases magistrates may be more inclined to come down in favour of custody than in favour of bail. Although I can see the substance of that argument, it does not fit in very well with what I understood the noble Lord, Lord Janner, to be saying just before when, as usual, he was defending the magnificence of our magistracy and their great competence in being able to arrive at proper conclusions without regard to irrelevant considerations. Under this Bill, magistrates will be required—and I have no doubt that they will carry out their duty—when someone is asking for bail to have regard only to those considerations which are set out in Schedule 1. I have such a high opinion of the magistracy that I do not believe that they will fail to do their proper duty and to apply those tests because of the thought, "Since there is no penalty for failing to surrender to it, if we give this man bail, he is the more likely to abscond."


If the noble Lord thinks that that is not sufficient guidance for magistrates, will the noble Lord have an opportunity at a later stage to add to it? My contention is that it is sufficient guidance. Be that as it may, his argument does not cover that point. The noble Lord is quite right; I have that opinion of magistrates. Years ago, I had a considerable amount of experience in the courts, and in other directions at the present time, and I think that magistrates carry out their duties in a proper way. Indeed, if they were to do something which was unreasonable, is not there still the opportunity of appeal?


I think that the noble Lord and I are discussing two different points. If we are to have Clause 6 as it stands, I agree entirely with the noble Lord that there are very reasonable provisions for allowing magistrates or, indeed, any court to excuse failure to surrender to custody if there is reasonable excuse. That is provided for in Clause 6, and I have no doubt that in the performance of the duty of enforcing that clause, if it remains a clause, magistrates will do their job properly. However, the argument that I was having with the noble Lord, Lord Harris of Greenwich, was slightly different. I was expressing some doubt as to the force of his argument that if no specified penalty is attached, then there will be a greater inclination on the part of magistrates to deny bail in proper cases. That is a matter of judgment and I do not think it would be very helpful if I tried to pursue it any further. I am very much obliged to the noble Lord for the consideration he has given to the Amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [General right to bail of accused persons]:

Lord FOOT moved Amendment No. 2: Page 4, line 32, after ("accused") insert ("or convicted person").

The noble Lord said: If I may take Amendment No. 2 together with Amendments Nos. 3 and 4 and, indeed, together with Amendments Nos. 7, 9, 10, 11, 12 and 13, they are all directed to the same object. Under the Bill at Clause 4(2), the presumption of bail, which is provided for in both Part IV and Schedule 1, does not apply on or after conviction and before sentence. Here it applies only prior to conviction. There are many occasions when a court, particularly a magistrates' court, has someone before it and find him guilty of the offence charged and convict him or make a finding of guilt. Then the matter is adjourned in order that further inquiries of different kinds can be made—medical reports, social reports and so on.

Under this Bill as it now stands there is no presumption of bail. There is of course the possibility of bail, but there is no presumption in favour of bail in the intermediate period between the decision of the court upon the facts of the matter—the verdict of the court—and the subsequent availability of the information or report. The purpose of this series of Amendments is that the presumption in favour of bail shall arise if there is an adjournment after conviction for the purpose of obtaining further information about the convicted person, and in particular to obtain social inquiry reports and medical reports.

Again, I will not go into this matter in any detail but it was considered extensively by the Working Party, at Chapter 6. I do not for a moment dispute that it is a matter which is full of difficulty and where there is a great conflict of expert opinion on the whole question. In particular there is a great conflict of opinion between the psychiatrists, on the one hand, and the prison doctors on the other, as I understand it, as to whether one can most advantageously obtain a useful medical or psychiatric report upon an individual when he is in custody rather than when he is out in the community on bail. Here again, the statistics on the matter are not very evident. In paragraph 147 of the Working Party's report dealing with this matter of remands after conviction, it is stated: Figures of the number of persons remanded on bail for reports are not available, but the Prison Department's statistics of persons received into custody give some indication of the large numbers of persons remanded for reports. In 1972, for example, 23,885 persons were received into custody after conviction but before sentence. It goes on later to say: It is reasonable to assume that in the majority of these cases the remand was for the purpose of obtaining a report. In the same year 12,437 persons were remanded in custody (by all courts) specifically for mental observation or state of health reports. Is it not a very serious matter that in 1972 just fewer than 24,000 people were given what I might call a taste of imprisonment by being remanded in custody, not with the overt purpose of punishing them, because that would be entirely wrong, and many of them were persons who might not subsequently be sent to prison at all; but those people were taken into custody and held in custody for the purely administrative purpose of getting a social inquiry or medical report. It is sending people to prison in order that they may see a doctor. I regard that as a very grave criticism of our present arrangements, and the whole object of this Amendment is to see whether there is some way in which the number of people who are remanded in custody for that administrative purpose can be reduced, and to enable those people whose case is adjourned between conviction and sentence to have the advantage of the presumption for bail which is given under Schedule 1.

I should like to make it quite clear that this Amendment does not in any way detract from the obligation of the court to consider applications for bail in those circumstances according to the criteria laid down in Schedule 1. The court must still ask themselves: is this person likely to surrender to his bail? They must still ask themselves: if he is let out on bail, is he likely to commit other offences? They must still ask themselves: is he likely to interfere with witnesses—although that probably does not arise at that stage. They still have to ask all the same questions and in my submission if we were to give those people the same presumption of bail as is given to an ordinary accused person prior to his trial it could make a substantial contribution to the reduction of the number of people who are being held in custody purely for administrative purposes.

Again here it seems to me that the Government, in accepting the recommendation of the Working Party that there should not be a presumption of bail in those circumstances, need to defend their introduction of a change in the law. As the Minister will know, under the Magistrates' Courts Act there are provisions for bail to be granted, and in fact what is being done here is to take a retrogressive step, and we are reducing the obligation to grant bail as compared with the state of the present law. I will not go further into that but the noble Lord will know to what I am referring. It is a matter for the Government to justify their position; it is not for us on our side to discharge the onus of proof. They are introducing this new conception and I shall be interested to hear what the noble Lord has to say about it. I beg to move.


I wonder whether I may ask my noble friend Lord Harris of Greenwich whether he has read the article by Mrs. Dell in last Friday's issue of the New Law Journal, and if not whether he will do so before approaching this question. I think she has done much more research work in this field than anyone else and she points out that about 12,000 people are remanded in custody for psychiatric reports. It is not because the justices think they are "barmy"; they just want a complete dossier. Mrs. Dell says: For example, in 1974, of 12,500 persons who were remanded in custody for psychiatric reports, only 12 per cent. were given psychiatric disposals, for example hospital orders. Then she points out that while the Bill: confers no protection upon post-conviction remands, it takes away the existing safeguards, by repealing Section 18 of the Criminal Justice Act 1967. That section made it mandatory for remands under Section 14(3) to be on bail, unless any of the conditions of Section 18(5) were fulfilled. Section 18 also applied to remands under Section 26 of the Magistrates' Courts Act 1952, although there was a proviso that bail need not be granted if it proved 'impracticable' to obtain the medical examination. She then continues: The new Bill thus repeals the restrictions which Section 18 set upon the post-conviction custodial remand, and is not replacing them. The proposal seems as unsatisfactory as it is retrogressive. Secondly, she points out: Custody is far more frequently used for medical remands than for any other type of remand: in 1969 in London, for example, taking cases tried summarily, 86 per cent. of untried remands, but only 17 per cent. of medical remands, were bailed. Professor Gibbens, who I expect many of us know, and who has great experience in this field, has said: In the great majority of cases a person remanded in custody for a medical report is kept in an ordinary prison cell without special observation and is at some stage given an interview which would not be longer than he would receive from a consultant in the Health Service. It is really quite unnecessary to send a person to prison to see a doctor. I personally agree with what Mrs. Dell concludes—after reminding your Lordships about the Advisory Council on the Penal System and their 1974 Report on The Young Adult Offender The Council concluded 'we do not consider that the need for a psychiatric report justifies a remand in custody where bail would otherwise be granted'. Her article finishes with these words: It would be most unfortunate if the new Bail Bill made the problem of the post conviction custodial remand worse by repealing the protection currently afforded by section 18 of the 1967 Act, and taking no further action. But if the Bill were amended so that the presumption in favour of bail covered post conviction remands for reports, then there would be a good chance of bringing to an end the absurdity of the present system whereby thousands of men and women are sent into overcrowded prisons simply in order to see a doctor.

3.50 p.m.


As the noble Lord, Lord Foot, has said, in moving this group of Amendments, or at least one of them, his objective is to extend to convicted persons who are remanded for inquiries before sentence the presumption now embodied in the Bill in Clause 4 and Schedule 1 in favour of the grant of bail to accused persons. The drafting is technically defective, but I do not make any point of that; it never seems to me that there is a great deal of advantage. It is much more prudent to discuss the principle, and that is what I propose to do.

A remand after conviction but before sentence may occur in a number of cases. First, there is the situation, which is not covered in these Amendments of the noble Lord, Lord Foot, where the magistrates' court has committed the defendant to the Crown Court for sentence because it considers that its sentencing powers are insufficient. That is one situation which is not dealt with in the Amendment, and for obvious reasons. But there are two other situations where such a remand can take place, and this has been dealt with by the noble Lord, Lord Foot, and my noble and learned friend Lord Gardiner. The first of these is where the magistrates' court, acting in this case under its powers under the Magistrates' Courts Act 1952, wishes after conviction but before passing sentence to adjourn the case for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the case", in which case there can be a remand in custody for up to three weeks at a time or on bail for up to four weeks at a time. Secondly, there is the situation where the magistrates' court is satisfied that the accused did the act or made the omission charged but is of opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined, in which case there can be a remand in custody for up to three weeks at a time.

The Bill as drafted, as the noble Lord, Lord Foot, has pointed out, follows the recommendation of the bail Working Party, and given the fact that the noble Lord, Lord Foot, and my noble and learned friend have argued to the contrary direction, I think it is right for me to draw the attention of the Committee to the precise terms of their recommendation. In paragraph 148 they express their view in the following terms: First, the fact that the defendant has been convicted (or at least found to have done the act or made the omission charged) means that the situation is rather different from that obtaining in the case of remand before conviction. We consider that it would be inappropriate for the presumption in favour of bail…to apply after conviction. We do not mean by this that defendants should usually be remanded in custody for reports or that more remands for reports should be in custody…. All we have in mind is that once a person has been convicted he no longer has a presumptive entitlement to bail. Where, for example, a court has it in mind to pass a custodial sentence subject to the contents of the report which it has called for, it may consider that the remand should be in custody, even though there is little likelihood of the defendant absconding or committing further offences and, in our view, such a course need not be unreasonable. The second special consideration arises in the case of remands for medical and psychiatric reports, where the court needs to consider whether, apart from the normal bail considerations, it would be desirable for the report to be prepared in custody or not. This is clearly a matter of judgment. We have considered, in drafting the Bill, that in the light of the recommendation made by the bail Working Party, the best course would be to leave matters of this sort to the magistrates' court, to leave in their hands an unfettered discretion as to remand on bail after conviction and to rely on advice to courts given by Home Office circulars. Nevertheless, as my noble and learned friend has pointed out, there has been discussion, not only in this House but outside it; he pointed out the article by Mrs. Dell. Certainly without giving any guarantees at all, I would say that we will certainly look into this matter at a later stage of the Bill to see whether this matter should be clarified within the legislation.


I am very much obliged to the noble Lord for that undertaking, in so far as it is an undertaking; I shall not hold him firmly to it. Before I sit down I would merely say that earlier I was speaking from a position under a defective microphone and could not properly be heard. May I congratulate all members of the Committee that they were spared having to listen to me.


May I ask the Minister one question. Throughout the Bill there is no mention made of people who are on bail at any stage or who are kept in custody at any stage for the reason that they are of no fixed abode. We have a great many people who are vagrants. We have a great number of people who cannot be traced because they have no fixed abode at all. Could the Minister give either an assurance or an answer as to what the Government's proposals or recommenda- tions to magistrates should be in the future about granting bail to those of no fixed abode?


I hope I will not incur the displeasure of the noble and learned Lord, Lord Hailsham, if I answer this point, because the noble Baroness will realise that it goes a little wide of the precise Amendment we are discussing, which turns on a different question. I do not think it would be appropriate for me to answer at length. Certainly there would be a presumption in favour of bail in all cases, but in my Second Reading speech on the Bill I tried to deal with certain other steps of a non-statutory character which I thought would be helpful in this regard.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clauses 5 to 10 agreed to.

Clause 11 [Legal aid for bail decisions in certain cases]:

4 p.m.

Lord FOOT moved Amendment No. 6:

Page 12, leave out lines 34 to 41 and insert— (c) where a person who is charged with or has been convicted of an offence appears or is brought before a magistrates' court on an occasion when he may be remanded or committed in custody and is not (but wishes to be) legally represented before the court.

The noble Lord said: I beg to move Amendment No. 6. Subsection (3) of Clause 11 is designed to ensure that a person shall be entitled to legal aid, if he comes within the financial limits, at his second remand in custody or prior to his second remand in custody, but makes no similar provision for his having legal aid and legal representation when he first comes before the court and is at risk of being remanded in custody.

When the noble Lord the Minister was speaking on this at Second Reading, he said that this clause was designed as a safety net. He explained, quite rightly, that if a person turns up on his second appearance, say, before the magistrates unrepresented, it does not necessarily mean that he was unrepresented on the first occasion. He may very well have had his own solicitor. He may very well have fixed up legal aid beforehand. Therefore, it does not necessarily follow that all the people who would be able to take advantage of this provision and get legal aid on their second appearance have been denied legal aid and legal representation on the first. But I can see no reason why this useful safety net should not be brought forward to the first occasion, so that it could be ensured that from the very outset, wherever anybody comes before the court and is at risk of being remanded in custody, he should on that occasion, if he is entitled to it and if he wishes it, have legal aid in order that he could be legally represented.

I believe that this is a matter of great importance, because I have had many instances and experiences in making applications for bail particularly before magistrates' courts. I said on Second Reading that I suppose I must have made almost tens of thousands of applications myself. It is well known to everybody who practises in the criminal courts, particularly in the magistrates' courts, that a person appearing on his own is at a great disadvantage in trying to explain to the magistrates why he ought to be granted bail. What usually happens—and I think this will be the experience of everybody—is that the police officer gets up and says, "I am asking for a remand in custody for eight days" or whatever it may be, and possibly briefly gives reasons why he is doing that. Then the chairman of the Bench says to the accused, "Have you any reason to put forward why you should not be remanded in custody?" The man is at a loss to know what are the considerations in which the magistrates are interested and what counts. He does not know about community ties, and things of that kind. He does not understand what these things mean. Very often he either says, "No, I can't advance any reason", or he puts forward the first thing that occurs to his mind; for instance, that he is hoping to get a job the following Monday, and if he is in custody he will not be able to take the job. But as a representation to the magistrates of his full condition it is hopelessly inadequate.

When it happens, as it repeatedly happens, that a person is unrepresented on a first occasion and therefore is unable to put his case, when he comes back on the second occasion and he is represented (as he will be under this Bill), if then there has been no change in circumstances but by virtue of the fact that he is legally represented he then gets bail, a very great wrong has patently been done because an error was made upon the first occasion. For the life of me, I cannot see why the noble Lord's safety net should not be advanced to the first occasion.

The fact that people who are unrepresented when making applications for bail are at a great disadvantage is clearly borne out by what statistics we have. May I give the Committee one or two figures which have been put forward by NAPRO and by the Howard League of Penal Reform in the representations which I think they made to the Working Party. They wrote: In the Cobden Trust survey it was found that 80 per cent. of defendants making their first appearance in court were unrepresented. The survey also found that the defendant was legally represented in only 36 per cent. of bail applications. Susanna Dell (that is the lady to whom the noble and learned Lord, Lord Gardiner, referred just now) in her report of 1973 found that 38 per cent. of those remanded in custody before trial and not subsequently imprisoned were unrepresented, and there was no information on a further 20 per cent. of cases. Of those in her sample remanded in custody after conviction and not subsequently imprisoned, 79 per cent. were unrepresented. In Mr. Zander's study, when the police opposed bail, 31 per cent. of represented defendants were granted bail compared with only 16 per cent. of those who were unrepresented. Those simple figures seem to clearly illustrate the extent of this problem and the disadvantage which an unrepresented person is clearly under when he is making an application for bail on his own behalf.

Here again it seems to me that what the Working Party have done—and the Government have followed them in this—is that they have established the admirable principle set out in Clause 4 and in Schedule 1 that in the ordinary way there shall be a presumption in favour of the granting of bail, and then they have retracted and fallen back from that situation. I shall be interested to hear from the noble Lord, if it is said to be administratively difficult, what are the difficulties in ensuring that a person who is liable to be remanded in custody has the legal representation necessary to present his case. I beg to move.


I hesitate to intervene, but I should like to support what the noble Lord, Lord Foot, has said. Perhaps I might rapidly say what happens in our court. If there is any question of a man wanting bail and he is not represented, we put the case back for three quarters of an hour, an hour, or whatever time it takes, so that the duty solicitor can see him and then represent him in court. This is invariably done.

4.18 p.m.


As he has pointed out, the Amendment which the noble Lord, Lord Foot, has moved deals exclusively with the issue of legal aid, and it is to that I shall address myself. The noble Lord, Lord Foot, has also pointed out that there are two effects so far as this Amendment is concerned. On the first, I fear that the Government are not in a position at this stage to be able to agree with the noble Lord. I shall deal with the second effect in a moment.

The first proposal of the noble Lord, Lord Foot, is that there should be a requirement that the court should make a legal aid order on the first appearance of an unrepresented accused person if there is a possibility of his being remanded or committed in custody. The position about this is as follows. An accused person appearing for the first time may have been, and frequently has been, arrested overnight. Consequently, there will often be a situation in which he would have had no time to secure the assistance of any legal representative. If he appears in one of the 45 courts—like one of those referred to by the noble Baroness, Lady Macleod—where there is a duty solicitor's scheme, then the duty solicitor will obviously be in a position to help him. But it may never be practicable to cover all courts in this country in this way, and it certainly cannot be done at this moment of time. It would, in my view, be a retrograde step to defer a first appearance, since many an unrepresented defendant gets bail at that time at the present moment.

The noble Lord and others may contend that even if the court cannot pro- vide a solicitor on the first appearance it can, and should, grant legal aid at that time. This is, in fact, already done in many cases; although certainly not in all. I would not suggest that. Sometimes, however, it may not be practicable to do so. For instance, the defendant may be drunk or he may be in a state where he is unable to understand immediately what is at issue; and even if he does it may not always be immediately practicable to ascertain whether his financial position is such that he needs legal aid or to ascertain whom he wishes to represent him. That is an important factor because the name of the solicitor has got to appear on the legal aid order. He may want to take advice from a number of people as to whom his legal representative should be.

I do not say this just to try to create difficulties, but simply to point out the practical difficulties so far as the mandatory requirement is concerned. The Working Party referred to this particular problem and I will again quote them. It is appropriate to do so because, as I indicated in my Second Reading speech, the proposals of the Government are broadly based on the recommendations of the Working Party. This is what the Working Party said, in paragraph 181: We accept that in principle similar considerations apply to deprivation of liberty through a custodial remand. In practice, however, it is often not possible to arrange for a person to be legally represented before he is remanded particularly when he is making his first appearance in court, perhaps after an overnight arrest. We do not consider therefore that it will be practicable to require that legal aid should be offered to a person before he is remanded in custody. The same difficulty does not arise on a second or subsequent appearance and we recommend that when a court remands an unrepresented defendant in custody it should, as a general rule, grant legal aid if he is without sufficient means to engage a solicitor privately. But there is then a second question. That is that the provision relating to convicted defendants would seem to relate solely to the position of people remanded in custody, for instance, for a report of the kind that we were discussing some minutes ago. It is reasonable that a person in this situation should be given legal aid if he is not legally represented already. There is no dispute between us on this issue. However, since this clause operates by amendment of the Legal Aid Act 1974 and the Amendment on the Marshalled List attempts to deal with two separate points, the question whether, and if so how, the objective can best be met needs further exploration. If the noble Lord is willing to withdraw his Amendment we will explore and see what can be done.


May I ask the noble Lord whether his last sentence means that he is prepared to look at this again before the next stage?


I am indicating that, on the second element of the Amendment, we will look at the matter again.


May I ask my noble friend Lord Harris what are the Government intentions with regard to the encouragement of duty solicitors? I appreciate that in the absolute form of the Amendment there is a real practical difficulty. On the other hand, if everywhere there were duty solicitors the question would not arise and where there is not a duty solicitor many courts will ask a solicitor in court to have a word. Is it not possible for the Government to extend that'? We come up against the fact that it is our arrangements for legal aid which are defective. On the face of it, it cannot be right that we have now provided that this criminal who has just been convicted of an offence so serious that they are thinking of sending him to prison, cannot be sent unless he is offered legal aid. This man may be completely innocent and he may be sent to prison for a week; and we say that it is administratively complicated. It is much simpler for us in administration if we send him to prison for just a week to start with. It does not speak very well of our administrative arrangements.


I find the Minister's reply very disappointing. I do not believe that there are these administrative difficulties which he was quoting from the Working Party report. As the noble Baroness, Lady Macleod of Borve, has said, apparently in her court—no doubt one of the most excellently conducted courts in the land—


There is a duty solicitor scheme there. I was trying to point out that although we should like an extension of schemes of this sort it is impossible to pretend in the present situation that we can extend this scheme to every court in the country.


If we had an Act of Parliament which requires that a magistrates' court should grant legal aid and therefore representation in such cases, all the administrative difficulties could be very easily overcome. The noble Lord quotes the case of a man who is drunk and therefore cannot give sensible instructions. Surely, if a person turns up drunk, much the best thing is to put the case back until he is sober and until he can give reasonable instructions to his solicitor. I revert to the illustration that I gave which I am afraid the noble Lord has not answered. Is it not a very wrong thing that it can happen, and constantly does happen, that a person fails to get legal aid and therefore fails to get representation and has to put forward his own case? Is it not wrong that that person can be remanded in custody; and a week later, when he is represented, it is then discovered that he ought to have been given bail in the first place and was not. That is an intolerable situation. The noble Lord cannot persuade me that the administrative difficulties are such that the legal and criminal procedure of this country is not capable of coping with that situation. I reluctantly withdraw—


If my noble friend the Minister would forgive me my ignorance, there is some question that occurs to me that, listening to this dialogue, affords me some concern. We take the case of somebody who one evening is arrested for an alleged misdemeanour. He remains in a prison cell overnight, presumably. He is not able to be represented that evening nor the following day before he appears before a magistrate or some other court. The court decides—the judge or the magistrate—this person not being legally represented, to retain him in custody. The question that concerns me is this. If he is retained in custody before there is any question of legal representation or because—as my noble and learned friend Lord Gardiner seemed to indicate—there are difficulties not easily overcome, is he retained in a prison cell, with similar treatment to that of a convicted prisoner, or is he provided with what might be described as preferential treatment in the circumstances?

I am sorry that my noble and learned friend Lord Hailsham—if I may so call him—and the noble Earl, Lord Mansfield, appear to be hilarious about the nature of my question—or it may be some other matter which causes them to indulge in frivolity. I am confessing my ignorance of this matter. We are always told that British justice is the finest in the world. I am one who believes that, being very patriotic in matters that concern the United Kingdom. Having listened to this dialogue, I again confess my ignorance and ask what would be the position of a person in the circumstances which I have ventured to describe.


I believe that my noble friend is under a misconception. There is no requirement in the law as it stands that a person should be kept in custody simply because he has no legal representation. That is not the position. The noble Lord, Lord Foot, is seeking to make it mandatory that legal representation should be available on the first court appearance. That is not what the Bill says. The view of the Government is certainly that it is highly desirable that a person should be legally represented at his first appearance, and that happens in many cases. It happens if the person in question is able to secure legal representation on his own. It also happens if there is a duty solicitor scheme of the kind referred to by the noble Baroness, Lady Macleod of Borve. However unless the person is for some period of time deprived of his liberty to await the arrival of a legal representative, it is difficult to see how this can be managed. It is our view that that is not the right way to proceed. I believe that it is more often than not the situation that, on his first court appearance, be he legally represented or not, he will obtain bail.

My noble friend asked about the circumstances in which a person is kept in custody. There is no doubt—and none of us would shrink from this for a moment—that the conditions in which many people are kept in custody are a disgrace to a civilised society. I would not for a moment suggest anything else. I have seen some of this myself and the noble and learned Lord, Lord Hailsham, has seen a great deal more. It is a standing indictment of our society that people are maintained in conditions of this sort. I believe that it is the view of everybody in the Committee today that we want a situation where the minimum possible number of people are maintained in conditions of this sort. I do not believe that there is any dispute about that.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Remaining clauses agreed to.

Schedule 1 [Bail for accused persons: supplementary provisions]:

4.23 p.m.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 8: Page 14, line 6, leave out ("that it is probable") and insert ("that there is an unacceptable risk").

The noble and learned Lord said: I rise to move the first of the Amendments standing in my name. Strictly speaking, they are independent, although I have drafted one of the later Amendments on the hypothesis that the first one may possibly be accepted by the Committee. This was not intended to be disrespectful, but one had to draft the Amendment in one way or another.

This matter goes back to the speech which I ventured to make on Second Reading. As I indicated to the House, it was my opinion, fortified by a very distinguished member of the judiciary and by the document put out by the Senate of the Bar Council and subsequently supported by the Police Federation, that the wording of Schedule 1 made it too difficult for magistrates to operate the scheme in a way which would allow them to give effect to the considerations which are admittedly desirable and which were enshrined in the report of the working party which it is the main purpose of the Bill to legislate.

Bearing in mind that we have now passed that part of the Bill which creates, as we all agree that it should, a presumption in favour of bail, we now look at the Schedule which provides exceptions to that presumption. As drafted, it reads: The accused need not be granted bail if the Court is satisfied that it is probable that…". The question is whether that is an adequate phrase to have used. Of course we all have different ideas about what is meant by "probable". My use of the word means that there is more than a 50 per cent. chance that something will happen. Other people may mean something else. Indeed, I know that they do because I have discussed this with members of my family and others. Let us apply this not to a busy magistrates' court like that of my noble friend nor that where the noble Lord, Lord Foot, used to practise, but to a remote country court in which quite a serious case has been raised. Or let us take something which we all have fairly well in mind—the case of the Cambridge rapist. I mention that case because we know the facts of it fairly well and because it has been disposed of and there is no possibility of an appeal.

I dare say that it would be possible—indeed, I do not feel that it would be difficult, especially if bail hostels were provided—to make reasonably certain that the odds were fairly small that, after committal or while on remand, the person in question did not again commit the offence while on bail. More probably than not, he would not do so, but does anyone think that he ought to be let out in those circumstances while awaiting trial? I believe that no member of the Committee will think that he should be.

The Bar Council suggested that, instead of, "probable that", we should have the words, "a real possibility that". I feel that that is equally rather too vague because a great number of people are charged with offences which, even if they do commit them again—although naturally enough some harm is done—perhaps not very much harm is done. For instance, any habitual drunkard may have another outbreak, or one of those unfortunate people who commit rather disgusting public nuisances may do it again; but, on the whole, a compassionate and liberal-minded Bench would probably be disposed to let them out.

I have used the phrase, "an unacceptable risk that…". Personally, I prefer that to either the solution of the Bar Council or that of the Bill as drafted. Take it to the Cambridge rapist. Suppose there is only a one in 10 chance he will commit another offence. The possibility is really so hideous, considering what he did, that it is what I should call an unacceptable risk. It is not necessarily a probability. It is rather more than a mere possibility. I shall go on, as I develop my various other Amendments, to indicate the kind of factor which would make a risk unacceptable. One is the seriousness of the type of offence the accused may commit when out on bail. Another is the degree of certainty that he will be convicted of a serious offence. He may have admitted it or be going to admit it. The length of the sentence which he will receive is also a factor. If he is not to receive a custodial sentence, presumably one would let him out on bail every time except if there were a danger of suicide or something similar. On the other hand, if in all probability he will receive a heavy custodial sentence, there is no purpose in letting him out. That sort of factor enters into the question whether or not the risk is unacceptable.

I have given a good deal of thought to this point and I believe that the phrase, "unacceptable risk" is definitely preferable to either the wording in the Bill as drafted, which is based on profitability, or the formula advocated by the Bar Council. Therefore I propose this Amendment. I ask the Committee and the Minister to bear in mind this other factor to which I think I drew attention on Second Reading. We have the best record in the world—with the exception of Sweden, with which we are equally placed—per head of population for not keeping people in prison awaiting trial. The statistic is six persons per 100,000 head of population.

I also ask Members of the Committee to bear in the back of their minds something which I heard on the wireless on, I think the day after the Second Reading in this House; namely, that in London alone seven persons are arrested every day for offences they have committed while on bail. I also ask the Committee to bear in mind what the Working Party said about this. The Working Party said, I think, two things which we ought to remember.

The first is that there are some people who say that bail is not granted often enough, and there are some who say it is granted too often. But both propositions can be true, they are not incompatible with one another. In certain cases bail can be granted where it ought not to be granted, and in certain cases bail is not granted where it should be granted. Perhaps one of the difficulties is that magistrates, particularly lay magistrates, sometimes in a remote part of the country, are not given sufficient guidelines as to how they ought to proceed. One of the things one hopes this Bill will do will be to help them to use their commonsense.

The last thing I wish to say on this point, which I think is included in the Working Party report, is that the magistrates have a very difficult task to perform, and for that reason one wants to help them. One cannot hold a State trial about whether a person is to have bail. If one went into an accused's complete record, his character, or his associates, one might easily prejudice the fairness of the trial when he is tried.

The magistrates are not asked to decide something which has happened in the past, such as when they are asked to decide whether a man has been guilty of an offence. They are asked to make an assessment about something which may, or may not, happen in the future. That is a very difficult task, especially when, as is normally the case, the evidence on which they are asked to make their assessment is neither complete nor absolutely convincing one way or another. I have given this matter the best degree of thought I can, and I propose in that spirit that the words "that there is an unacceptable risk" should be substituted for "that it is probable". I beg to move.

4.33 p.m.


As the noble and learned Lord, Lord Hail-sham of Saint Marylebone, pointed out, the Bill now provides in Schedule 1 that an accused need not be granted bail, if the court is satisfied that it is probable that the accused, if released on hail (whether subject to conditions or not) would abscond, commit an offence, or obstruct the course of justice. The Amendment which the noble and learned Lord, Lord Hailsham of Saint Marylebone, has moved would substitute the words, "that there is an unacceptable risk" for the words, "that it is probable". Clearly, in a matter of this type, it is unreasonable to take too doctrinaire a position, and I certainly do not wish to do so. I must say at the outset that we are not at the moment convinced that this form of words, which the noble and learned Lord has proposed, would improve the Bill, although my right honourable friend will consider what the noble and learned Lord said.

Before dealing with the argument of the noble and learned Lord, I wish to deal with one point which he touched upon this afternoon, as he did on Second Reading; namely, the position about how our record relating to the number of people maintained in custody awaiting trial compares with that of other countries. The noble and learned Lord quoted figures on Second Reading and mentioned them again this afternoon. I understand that they are drawn from a Working Party by the United Nations Secretariat—


I got them from a document circulated by the Magistrates' Association, but it in turn may have got them from the noble Lord's source.


I am much obliged to the noble and learned Lord. I suspect that as they are remarkably similar they come from the same source. What the noble and learned Lord, Lord Hailsham of Saint Marylebone, said is that our position does not compare unfavourably with that of other countries. If one looks at the table one sees that this is undoubtedly so. The United Kingdom and Sweden are top of the table in this matter, but—and I think I would carry the noble and learned Lord with me on this point—one must be a little careful when looking at international statistics, or indeed statistics of any kind. When considering some of the countries in the list—particularly Italy, to give one illustration—one must hear in mind the speed with which criminal defendants are brought to trial both in this country and in Italy.

Manifestly, if the process of bringing criminal defendants to trial is slow (and in the countries of some of our European partners it is considerably slower than in this country), clearly the number of people remanded in custody awaiting trial will he rather larger than in this country. That is undoubtedly so. Nevertheless, I would not seek to make too much of this point, but I feel it right to sound that cautionary note, given that the noble and learned Lord has, quite rightly, drawn attention to this question.

At first sight it appears that the Amendment which the noble and learned Lord moved today does not make the Bill more negative in its attitude towards a bail application, but I fear that it would to some extent have that consequence. The noble and learned Lord mentioned the case of the Cambridge rapist. He did so perfectly properly, because it came into the category of shocking cases to which 'the bail Working Party drew attention in its report. If one was discussing a situation where it was a question of whether the Cambridge rapist, or somebody of that character, was to be set at liberty, it would undoubtedly cause considerable public concern. We will come to that issue when dealing with the later Amendment in the name of the noble and learned Lord, which seeks to create a special category of cases which would be approached rather differently.

All I say in answer to the noble and learned Lord is that I do not think that the Cambridge rapist case would be necessarily significantly affected by whether we had one particular form of words or the other. It is a marginal matter, though obviously of some argument between us—perfectly properly and reasonably—as to whether it would have that consequence.

However, there will be no difference between either side of the Committee, or indeed between any Member, that there will be a number of people who, quite properly, should be kept in custody. Let us look at the criteria laid down in Schedule 1 to the Bill. One of the most important criteria is whether it is likely that the man will appear in court. Consider the instance of a man who possibly faces a sentence of life imprisonment, or something similar. In deciding whether or not to grant bail, the court can perfectly reasonably take into account whether the sheer weight of the sentence the man is likely to draw for that offence is likely to induce him to stay away when his trial takes place. Therefore, I believe that the court has adequate discretion to deal with cases of this kind. I do not believe that courts would behave unreasonably, because, with my noble friend Lord Janner, I believe that magistrates' courts, and other courts, apply their dis- cretion reasonably and in a responsible fashion.

I am quite sure that my right honourable friend the Home Secretary will look with care at what the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, but as we are at present advised in this matter we do not believe that an Amendment of this type would improve the Bill. We believe that it would make it marginally—though perhaps only marginally—more restrictive, and given the fact that that is our view, we very much hope that the noble and learned Lord will not press his Amendment—


Before the noble Lord sits down, I should like to return, albeit briefly, to the case of the Cambridge rapist. The noble Lord postulates the weight of the sentence which the accused might expect, but can the noble Lord tell us how many rapes the man was accused of when he first appeared on remand?


I will gladly look into this, but I am afraid that I cannot answer such a question off the cuff.


It is not as frivolous as it sounds, because the bench, when considering whether he should be admitted to bail, certainly cannot take into account the daily newspapers; they can take into account only the offence with which he is then charged before them.


With great respect to the noble Earl, I am sure that as a matter of law what he has just said is perfectly reasonable, but magistrates are members of society, as is anybody else. I do not want to comment on the facts of this particular case, but given the fact that I had some knowledge of it when it was taking place I find it very hard to believe that the magistrates would have had any doubt whatever as to what sort of case they were looking at.


I am always anxious not to appear mulish, and certainly I do not want to appear doctrinaire. The noble Lord is always courteous and careful in his replies, and it would be wrong of me to be anything but courteous and careful in my retort. I mentioned the Cambridge rapist to show an extreme case, but I do not take the view that on the Bill as drafted the magistrates would not have been bound to grant bail. I am quite sure that the noble Lord and I are absolutely at one as to what ought to happen—I am not pointing fingers at anybody—but I am not at all sure that on the Bill as drafted the magistrates would not have had to let the Cambridge rapist out, because under the Bill they are bound to give bail unless they are satisfied that one of the risks defined in the Schedule is probably going to happen. I think, and so does the member of the Judiciary who communicated with me (the noble Lord probably knows his identity, because I expect he has communicated with the noble Lord, too, but he did not expressly give me leave to mention his name), and so does the Police Federation and the Bar Council think, that in this kind of situation the noble Lord has gone too far.

I would accept from the noble Lord, I think, the statement that marginally this would make it more restrictive, but I want to do that in this respect. I want the formula "unacceptable risk" to be used instead of "is probable", because I think the test which the magistrates ought to apply is to presume in favour of bail but not to try to tot up the risks and say, "Is it probable or not that this will happen?". They should look at the seriousness of what may happen and ask, "Is that a risk which, as responsible magistrates, we find acceptable?" I believe that to be what they ought to do, and I am asking the noble Lord to consider whether this formula is not the right one.

In passing, may I say that I think we are talking a great deal too much about absconding. The noble and learned Lord, Lord Gardiner, has often said (and certainly I heard somebody say it this afternoon, but it was not him) that the danger of absconding is usually quite small in relation to bail cases. I think 3 per cent. was the figure mentioned, and it is certainly quite a small figure. What one is really talking about as to these bail cases is the danger of the accused either getting in touch with and "nobbling" witnesses, or intimidating them in some way, or committing offences while out on bail. If the offence with which a man is charged is one involving violence, or is a very serious offence, it is that, and not absconding, nowadays, in modem society, of which you ought to be afraid. In the old days, in the 18th century, before there was a proper police system, when there were no means of tracing people, no social security, no means of finding out a man's employer and so on, I dare say that absconding was a very real difficulty. That is why we had the surety system and the man had to dwell in his surety's house, and so on. But nowadays the problem is to stop offences of an unacceptable kind being committed while the man is out on bail. As I said, in London every day, so I understand, seven people are arrested for offences committed while they are out on bail.

I am not happy about the Government's formula. If the noble Lord had been a little more forthcoming, I would not have felt it right to press the Amendment in any way, but I do not think lie was very forthcoming when one comes to consider his courteous but, I think, fairly firm rejection. Nor, to my mind, was the reason which he advanced a very satisfactory one in view of the great weight of the opinion behind me on this matter. I do not mean behind me on these Benches—they are all listening to the Budget, so far as I can make out; I mean the judicial and professional opinion which supports the general view I am putting forward. Of course this matter is not closed either way. I propose to press this Amendment if the noble Lord is not a little more forthcoming. If he does not like my formula and can think up a better one, we can come back to it on Report, but I am wondering whether he will not be a little more forthcoming first.

4.47 p.m.


I should like to encourage the Minister to be a little more forthcoming because, personally, I am not at all happy with either of the proposed forms of wording. I entirely agree with the noble and learned Lord that a 50 per cent. chance is too big to take in cases like the Cambridge rapist and in other cases of the same kind. On the other hand, to lay down in print that a court is not to take "an unacceptable risk" seems to me rather absurd, because I should have thought that any court would know that it was not proper to take "an unacceptable risk" by definition. Therefore, I do not think that would tell the court anything. I hope my noble friend will try to think up some phrase which comes, so to speak, halfway between that of the noble and learned Lord and the one in the Bill as it now stands.


I see that the noble Lord, Lord Wigoder, is not able, obviously, to be present here today, so perhaps I might just remind the Committee of his view—and, after all, he has considerable experience in this field. He said on Second Reading, at col. 518 of the Official Report of the 22nd March: As I have always understood it, the gravity of the offence has been not an independent factor which warrants the refusal of bail; it has been a factor which the courts consider in deciding whether or not a person will surrender to stand his trial. Certainly, in recent years it has been not unknown for bail to be granted in murder cases where it is clear that a person will stand his trial, will not interfere with witnesses and will not commit further offences while on bail. Indeed, the other matters mentioned by the noble and learned Lord, Lord Hailsham—the strength of the case, the question of community ties, and so forth—I suggest are really all matters which primarily come under the heading, 'Will the defendant fail to surrender at his trial?'. I observe that in Friday's issue of Justice of the Peace it is said: Frankly, we have never been able to follow the logic that commends this practice to the professional judiciary. The amateurs of the magistracy are, we think, less attracted by it. If a court does not consider it a real possibility that an unconvicted offender will abscond, commit a further offence or interfere with witnesses, then we fail to see in what way the seriousness of his alleged offence is relevant to the issue of bail. No doubt the Government will also take those observations into account.


As one who is sympathetic to the philosophy behind this Bill, I share many of the doubts expressed by the noble and learned Lord, Lord Hailsham of Saint Marylebone. Perhaps my attitude rather coincides with that expressed by the noble Baroness, Lady Wootton. Though I support the approach of this Bill, I am a little unhappy with these words, "satisfied that it is probable". May this not be very confusing for some benches of magistrates? May it not lead to the situation where, in some cases in which there really ought not to be bail, magistrates may be persuaded that they must grant bail?

These are so often matters of instinct, matters based upon experience. Over the years, magistrates and judges who have to decide these matters draw upon a wealth of experience of the past; and it is very unfortunate if they must be anchored to certain words. They must be "satisfied"—that is only another way of saying "sure"—"that it is probable". I share the view of the noble and learned Lord, Lord Hailsham, that "probable" means more than 50 per cent., and I think that magistrates may have a powerful plea made to them in cases where really, by instinct and by experience, they would feel, "No, this is not a case for bail". They will now be told, "You must be satisfied, you must be sure, that it is probable that one of these things will happen". I wonder whether the noble Lord, Lord Harris, could think of some other phrase that would be in tune with the philosophy of the Bill but yet would not give quite the difficulty to some magistrates that I suggest the present wording might.

It may be that there is not much between the two sets of words. To be satisfied that it is probable, I should have thought meant that it must be over 50 per cent. To be satisfied that there is an unacceptable risk—one is coming very near it. What is an unacceptable risk? It is a risk that ought not to be taken; a serious risk. One gets very near the 50 per cent. You must be satisfied in each case. I wonder whether it is possible to get some form of words that would meet the difficulty that I share with the noble and learned Lord, Lord Hailsham, and the difficulty that I share with the noble Baroness and yet would not interfere with the spirit of this Bill.


I wonder whether I might add one more voice, the voice of one who has to make some of these decisions, for as sitting magistrates we have to face the question of whether a person should or should not be granted bail. I wonder whether I might join my colleagues on these Benches and the noble and learned Lord on the Cross-Benches in urging the Government to give this matter further consideration, specifically as it relates to the word "probable"; because "probable", in my opinion, means that you have to be more than satisfied that the defendant is likely to commit an offence. This is an almost impossible decision to come to, given the limited information that we as magistrates must consider when we make this decision. I am not sure whether the words which the noble and learned Lord, Lord Hailsham, put forward are necessarily the correct ones, but I think they come rather nearer than does the word "probable". I think the word "probable" is too strong. I think the Government should give serious consideration to this matter and I hope that they will do so.


I do not suppose that the noble and learned Lord, Lord Hailsham, shares some of the attitudes and opinions I have been expressing about this Bill this afternoon, but I think it only right to say that although I have been urged by those who have been advising me and helping me in this matter to try to get the Government to stick on the word "probable", I am satisfied myself, after listening to the noble and learned Lord, that the words he is proposing are preferable to the word "probable". I think that the difficulty we were in was this. When the noble and learned Lord spoke on Second Reading, he spoke then about the great difficulties which the word "probable" would arouse. But on that occasion he was contemplating proposing, I think, in Committee that we should adopt the recommendations of the Bar Council and should substitute for the word "probable" the word "possible".

That created great alarm among supporters of the Bill, because I think the noble and learned Lord will agree with me that simply to substitute the word "possible" for "probable" would be driving a coach and four through the Bill. I do not think—and here I agree with the noble and learned Lord—that the difficulty in the use of the word "possibility" is cured by putting in front of it the epithet "real". I do not think that "real" adds anything to the meaning of "possibility". A possibility is either real or it is unreal; and if it is unreal it is not a possibility. Therefore, I think that the noble and learned Lord has lit upon words which go as close as one can get to the intention of this Bill without going over the top into the field of probability. If I may say so to noble Lords opposite, I can see that magistrates who have to administer this would be in great difficulty when the clerk to the court says: "If you are going to refuse this man bail, you must be sure that it is probable that he is going to do this." I think that in those circumstances magistrates will be faced with an almost impossible conundrum. Therefore, because I have been convinced by the noble and learned Lord that this is the best set of words that have yet been found, I think it right to say so. If the Govment will not undertake to reconsider this matter then, if the noble and learned Lord proposes to carry this to a Division I will go into the Lobby with him.


As a magistrate for many years, I should like to say one thing. Surely, some magistrates would like the words that are in the Bill and some magistrates would like the words that my noble and learned friend Lord Hailsham wants put in the Bill. Magistrates are human beings. Some magistrates like one thing and some magistrates like another. I am wondering how many noble Lords present today have been magistrates. It is a very difficult matter and very few people today have said anything about what magistrates would like. So far as I know, nobody today has mentioned the fact that where you have a large number of magistrates attached to a court it just depends on what magistrates are sitting on the Bench at the time the matter comes up for discussion. In my part of the world I always knew that our clerk to the Bench was very concerned with which magistrates were sitting.

I have listened to all this with great interest as a magistrate, but the idea that anybody should say to the magistrate: "Now you must remember this and you must remember that" is unreal. I cannot put a figure on it, but I do not think many magistrates have any idea at all of what really goes on. They take their own views. If anybody were to ask me, I would prefer the words of my noble and learned friend Lord Hailsham. I do not know why. It is just because I happen to like him. I do not know that I like the views expressed by the noble Lord on the other side of the House who was talking his way. Yet, after all, quite a lot of people would like his words. The idea that a clerk to the court would be saying to the Bench of magistrates: "Now you must remember this and you must remember that" is all nonsense; it never occurs.

If my noble and learned friend Lord Hailsham likes to go on with his Amendment, I will support him—but, for goodness' sake! do not think that magistrates get very excited about words; they certainly do not. They do the best they can within the law. It all depends what magistrates have been summoned to sit on a particular court on a particular day. I should like to know a great deal more about what the views of magistrates really are in all these matters. I will not say any more because I do not really want to, but may I please ask noble Lords who have had a great deal of legal experience always to bear in mind that magistrates like to do the best they can in every case that comes before them. That is all I have to say.


The noble and learned Lord, Lord Morris of Borth-y-Gest, said that it

could be a marginal question whether we have the words which the noble and learned Lord, Lord Hailsham, prefers, "unacceptable risk" or the Government form, the word, "probable". It is, obviously, a matter for the noble and learned Lord to decide what to do. It would be impossible for me to commit the Government to any position on this matter this afternoon; but, as I said earlier, I will report to my right honourable friend what has been said in this debate. I cannot go farther than that today. The views have been expressed and I will report them.


I am grateful to the noble Lord. He must not think that I am taking an aggressive or hostile view. But in view of the measure of support that I have had, both from the Cross-Benches and the Liberal Benches, I must take the opinion of the House on this.

5.0 p.m.

On Question, Whether the said Amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents. 115; Not-Contents, 55.

Aberdare, L. Elgin and Kincardine, E Meston, L.
Allerton, L. Elliot of Harwood, B. Monckton of Brenchley, V.
Amory, V. Elton, L. Monson, L.
Amulree, L. Emmet of Amberley, B Morris of Borth-y-Gest, L.
Arran, E. Exeter, M. Mowbray and Stourton, L. [Teller.]
Atholl, D. Faithfull, B.
Auckland, L. Falkland, V. Newall, L.
Balerno, L. Feversham, L. Nugent of Guildford, L.
Balfour of Inchrye, L. Foot, L. Nunburnholme, L.
Banks, L. Fraser of Kilmorack, L. Ogmore, L.
Barrington, V. Gisborough, L. O'Neill of the Maine, L.
Berkeley, B. Glenkinglas, L. Pender, L.
Brimelow, L. Greenway, L. Porritt, L.
Brock, L. Gridley, L. Rankeillour, L
Brooke of Cumnor, L. Grimston of Westbury, L. Redesdale, L.
Brooke of Ystradfellte, B. Hailsham of Saint Marylebone, L. Reigate, L.
Burton, L. Ruthven of Freeland, Ly.
Byers, L. Hampton, I. Sackville, L.
Cairns, E. Hawke, L. St. Aldwyn, E.
Campbell of Croy, L. Home of the Hirsel, L. St. Davids, V.
Carr of Hadley, L. Inglewood, L. St. Helens, L.
Carrington, L. Killearn, L. St. Just, L.
Chorley, L. Kimberley, E. Sandys, L.
Clifford of Chudleigh, L. Kinnoull, E. Seear, B.
Colwyn, L. Lauderdale, E. Selkirk, E.
Cork and Orrery, E. Lloyd, L. Sempill, Ly.
Cottesloe, L. Long, V. Sharp, B.
Cranbrook, E. Lucas of Chilworth, L. Sherfield, L.
Cromartie. E. Lyell, L. Simon, V.
de Clifford, L. Mackie of Benshie, L. Somers, L.
de Freyne, L. Macleod of Borve, B. Stamp, L.
Denham, L. [Teller.] Mansfield, E. Strang, L.
Dilhorne, V. Margadale, L. Strathclyde, L.
Dormer, L. Marley, L. Strathcona and Mount Royal, L.
Dundee, E. Massereene and Ferrard, V.
Ebbisham, L. Merrivale, L. Stratheden and Campbell, L.
Strathspey, L. Vivian, L. Westbury, L.
Terrington, L. Ward of North Tyneside, B. Wise, L.
Trefgarne, L, Ward of Witley, V. Young, B.
Vickers, B.
Aylestone, L. Goronwy-Roberts, L. Mais, L.
Balogh, L. Greenwood of Rossendale, L. Melchett, L.
Birk, B. Hale, L. Northfield, L.
Blyton, L. Hamnett, L. Oram, L. [Teller.]
Bradwell, L. Harris of Greenwich, L Paget of Northampton, L.
Brockway, L. Henderson, L. Parry, L.
Collison, L. Houghton of Sowerby, L. Phillips, B.
Cooper of Stockton Heath, L. Hoy, L. Ritchie-Calder, L.
Crook, L. Jacobson, L. Shepherd, L. (L. Privy Seal.)
Crowther-Hunt, L. Jacques, L. Shinwell, L.
Davies of Leek, L. Janner, L. Slater, L.
Davies of Penrhys, L. Kirkhill, L. Stedman, B.
Donaldson of Kingsbridge, L. Leatherland, L. Strabolgi, L. [Teller.]
Elwyn-Jones, L.(L. Chancellor.) Lee of Newton, L. Wallace of Coslany, L
Energlyn, L. Llewelyn-Davies of Hastoe, B. Wells-Pestell, L.
Evans of Hungershall, L. Longford, E. Wilson of Radcliffe, L.
Feather, L. McCarthy, L. Winterbottom, L.
Fisher of Camden, L. Maelor, L. Wynne-Jones, L.
Gaitskell, B.

On Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

5.8 p.m.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 14:

Page 14, line 23, at end insert— ( ) Without prejudice to the first two paragraphs of this Schedule the accused need not be granted bail where the act or any of the acts constituting the offence with which he is charged consisted of treason, murder, manslaughter, rape, an assault or aggravated assaults or a threat of violence to another person or of having or possessing a firearm an imitation firearm, any explosive or an offensive weapon, or of indecent conduct with or towards a person under the age of sixteen years or of a conspiracy to commit or an attempt or incitement to commit or procure any of the above acts, or of aiding or abetting the commission of any of the above acts.

The noble and learned Lord said: The Amendment which I now rise to move is not of course an alternative to Amendment No. 15. They are separate Amendments; they can stand together. It could be argued that if the noble Lord was going to be more forthcoming regarding Amendment No. 15 than he was over the previous Amendment we discussed, Amendment No. 14 would not be so urgently necessary. This again gives effect to the views of, I think, the Senate of the Bar Council and certainly to the views which have been expressed to me. The seriousness of the offence committed has a bearing on whether or not bail should be granted.

The question of whether a risk is unacceptable that a crime should be committed when on bail obviously depends, in part, upon the nature of the offence which you may be afraid the person will commit is the person is allowed out on bail. If it is a modest offence, and not much harm will be done, you might be able to accept a very high degree of risk. If, on the other hand, it is a very serious offence, like murder, wounding with intent to murder or rape, you would not be content with a very high degree of risk; even a small degree of risk might be said to be unacceptable. So I have sought to put these words into the Bill: Without prejudice to the first two paragraphs of this Schedule the accused need not be granted bail if the charge involved certain offences of violence or inchoate offences connected with offences involving serious violence. I think this is right.

I accept that you can theoretically deal with this problem on the question of likelihood to abscond. But you are, in the modern world as I tried to say before—more concerned with repetition while out on bail than the danger of absconding. I was not at all impressed with the long quotations which the noble and learned Lord, Lord Gardiner, read out on the last Amendment. I think probably that if my Amendment No. 15 were opposed, No. 14 would become less necessary if it blemishes the logical purity of the noble Lord's Bill. Whether or not I divide the Committee, I rise to propose it and I should like to hear what the noble Lord has to say about it, since it is backed by a body which is far more reputable and respectable, indeed venerable, than my own private thoughts. I beg to move.


The effect of this Amendment moved by the noble and learned Lord, Lord Hailsham of Saint Marylebone, is to provide that where the accused is charged with any of the offences listed in it, the court need not grant bail even if they thought the accused would surrender at the time and place required. In other words, no presumption in favour of the granting of bail would arise in connection with the appearance of any person charged with any of these offences. Obviously there will be a lot of agreement in the Committee, as there was over the last Amendment, that many of the people who commit the offences listed by the noble and learned Lord should not be granted bail. The question is whether it would carry us a great deal further if we wrote this Amendment into the Bill.

I apologise once again for coming back to the Working Party, but given the fact that it was a widely representative body, consisting of representatives of the Magistrates' Association and the police, I think it is appropriate that we should constantly bear in mind what it said in matters of this sort. What the Working Party said on this general issue, in paragraph 55 of their Report, about the conditions additional to those set out in paragraph 1 of the Schedule was as follows: In general they are not in themselves reasons for granting or refusing bail, but indicators of the likelihood or otherwise of the defendant's appearance. As it subsequently observed in the following paragraph, the more serious the offence, the stronger the temptation to abscond was likely to be and the smaller is the risk that can justifiably be taken either of the defendant's absconding or of his committing offences similar to that with which he is charged. As I indicated over the last Amendment, the Government shared the general approach that the gravity and nature of the offence are evidence relating to the application of the three criteria which are set out in the first paragraph of the Schedule.

Another point I should like to mention—I always quote the noble and learned Lord with pleasure—is that I hope he will bear in mind that the shadow Home Secretary made a speech which I think he would find fairly persuasive, when in another place the 1967 Criminal Justice Bill was being discussed. I should like to refer to this statement made by the noble and learned Lord in another place concerning Section 18 of what became the 1967 Criminal Justice Act. Mr. Quintin Hogg (as the noble and learned Lord then was) said this at columns 1622–3 of Volume 745 of the Official Report, on 26th April 1967: At the same time—I hope that the Home Secretary may consider this even while the Bill is passing through another place—as I said in Committee, the trouble with Clause 12 and this Clause, which are really parts of the same complex now, is that they are much too complicated. In my opinion, which is widely shared in the House, the only real reasons for refusing bail which commonly arise are the danger of absconding before the trial, the chance of interfering with witnesses before the trial and the prevention of the commission of another offence by the same offender". If I may say so with great respect, I think that is an admirable statement of the position and is certainly the view of the Government. But there is another point that I ought to deal with. I think there is an objection to the inclusion of so long a list of offences as is embodied in this Amendment. There is this need, as the noble and learned Lord said on the previous occasion, to avoid undue complication of the matter. However, there is no need to deal with the question of treason in particular, because by reason of Section 8 of the Magistrates' Court Act 1952 bail in cases of this sort can be granted only by a High Court judge or by the Secretary of State, and the probability of a person charged with a capital offence absconding is obviously very great. Therefore the mention of this offence seems unnecessary.

It is not just the grave offences that are involved: the trivial offences also are our concern. One of the offences mentioned in the Amendment by the noble and learned Lord is that of possessing an imitation firearm. That can, of course, be an extremely serious offence. It can be carried by a person who is attempting to persuade a bank cashier to part with a very large sum of money. It can also be an exceptionally trivial offence. With great respect to the noble and learned Lord, it seems to me that this demonstrates to the Committee the difficulty of putting in special categories of offences and changing the onus. That is why we have some considerable concern about this Amendment of the noble and learned Lord. It is not that we take lightly the point of dangerous men being set at liberty: not at all. We think that one should not specify particular categories of offences which are to be treated differently from other offences. In those circumstances, think the Bill, as drafted, meets the point and I hope that on reflection the noble and learned Lord will not press his Amendment.


The noble Lord, Lord Harris, has been very kind to me. I certainly think that in 1967 I well stated for an Opposition Member in another place the general points which I am making here now, and what I said again and again as Lord Chancellor in addressing magistrates all over the country. I do not think the noble Lord was altogether fair about the drafting of this Amendment. It may be true that it is unnecessary to put in "treason". It may be marginally true that the possession of an imitation firearm is an unnecessary embellishment. But the principle is fairly clear and, with the exception of those extremes, I should have thought I had done fairly well on the whole. They are the only ones that the noble Lord has complained of. I do not promise not to put this Amendment back on Report. What I am really concerned with is to prevent people getting out who may be likely to commit serious offences. I have achieved something with my last Amendment. I propose to have a good whack at my next one and not to detain the Committee with the intermediate one, if that is all right. So I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.21 p.m.

Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 15:

Page 14, line 23, at end insert— ( ) In applying their minds to the question whether a risk of the matters referred to in paragraph 1 of this Schedule be unacceptable the court shall take account of all relevant considerations but without prejudice to the generality of the foregoing shall take into account the following considerations as relevant where capable of assessment:

  1. (i) the seriousness and nature of the offence alleged;
  2. (ii) the character record and community ties and associations of the accused;
  3. (iii) the question whether the accused has at any time failed to comply with the conditions of bail including the obligation to present himself at court;
  4. (iv) the extent to which actual or potential witnesses for the proscution may be exposed to contact with the accused if out on bail."

The noble and learned Lord said: This is, as I said, in the nature of the last Amendment, and an attempt to assist magistrates in arriving at their conclusion about whether a risk is unacceptable, because those are the words which we have now, for the time being at any rate, written into the Bill. These ideas really come out of the Working Party's report. The noble Lord will have detected that I am not being entirely original in having thought them up for myself, and they are intended to be the kind of points which a magistrate ought to think about.

First, there is "the seriousness and nature of the offence". What led me to withdraw the last Amendment was the fact that this is a broad statement of the principle, whereas that was an attempt to spell it out by reference to certain offences. The second is, …the character record and community ties and associations of the accused". I was intending, if I may say so to my noble friend below the gangway who raised the point in an earlier part of the debate, to include any community ties, whether or not a person had a fixed address. Whether I have successfully done that as a matter of law, I am not sure. But I intended that "community ties" included the person without a fixed address, the footloose and the solidity of his relationships; in fact, the factors which the Working Party said ought to be taken into account.

Thirdly, there is, …the question whether the accused has at any time failed to comply with the conditions of bail including the obligation to present himself at court". Fourthly, there is, …the extent to which actual or potential witnesses for the prosecution may be exposed to contact with the accused if out on bail". That is to emphasise the importance of not allowing the accused to nobble witnesses or, in very serious cases, to be in a position where he can. These arc, in practice, what experienced Benches take into account; I do not think I am breaking fresh ground. But if there is to be a statutory presumption in favour of bail, even if you use the more permissive words of the "unacceptable risk" which are now accepted, magistrates ought to be given some help as to the relevant considerations.

I quite take the point of my noble friend below the gangway, that different magistrates take different views of discretionary matters. I do not think it is desirable that they should, but I know that they do. I want to limit the range of variation between court and court, and between individual and individual. I want them to know in general what they must bear in mind and, having regard to the very strong persuasive control that the Lord Chancellor exercises over the practice of magistrates, I should have thought this was helpful rather than otherwise. The Amendment is not intended to be either more restrictive or more permissive of bail. It is intended to put down in black and white, in a form which they will have in front of them when they decide on questions of bail, what they ought to be thinking about. With those preliminary words, which I hope have been reasonably lucid and short, I beg to move.


I should be very glad to see the back of no fixed abode". In my experience in magistrates' courts, "no fixed abode" is sometimes interpreted as meaning living in a furnished flat, which seems unfair. I dare say that "community ties" is as good as we can get. I have heard of old boy ties and RAF ties, but I have never yet heard of community ties. However, I daresay that people will take to wearing them.


May I just ask whether the word "record" is intended to include a conviction which is spent under the Rehabilitation of Offenders Act?


No. I am much obliged to the noble and learned Lord. I assume that the spent conviction would be excluded by virtue of the terms of the Act which he was so instrumental in passing. Obviously, if we get to that stage, and if he is prepared to suggest an Amendment to make that clear, I shall be prepared to accept it. At the moment, of course, I cannot alter the wording as it stands.


The Amendment moved by the noble and learned Lord, Lord Hailsham, operates by providing, in effect, that when considering whether any of the three grounds for withholding bail listed in paragraph 1 of the Schedule apply, the court may take into account the factors listed in the Amendment. The first three factors listed, as he has rightly said, are variations on some factors suggested by the Working Party as evidence of the existence of one or other of the grounds for withholding bail; namely, the nature and gravity of the offence charged, the strength of the case, the accused's record and antecedents, the likely sentence if the accused is convicted and the accused's community ties. The fourth factor listed in the Amendment is a new one not mentioned by the Working Party.

I am bound to say that we find substantial difficulty in regard to the fourth factor, because, …the extent to which actual or potential witnesses for the prosecution may be exposed to contact with the accused if out on bail goes rather too far. If the accused is on bail, any witness must be "exposed to contact" to some degree. If the noble and learned Lord will forgive me for saying so, this is a dangerously ambiguous form of words, because it could be used in a more restrictive sense than I suspect is his intention. The court could, in any case, impose a condition that the accused is not to attempt such a contact. If there is a probability, or whatever form of words eventually emerges from the consideration of this Bill through both Houses of Parliament, of interference with witnesses, this could in itself be a ground for refusal of bail, and it is the view of the Government that this is enough.

The first and second factors mentioned in the Amendment are matters which are relevant as evidence of the probability or otherwise of the defendant's absconding, committing offences while on bail, interfering with witnesses and so on, and it is therefore arguable that some words to this effect could be included in the Bill. The dangers in the inclusion of matters of this kind are that they may be taken by some to mean either that the existence of one of the elements is conclusive one way or the other; or, secondly, that the list is exhaustive. The Government's view has hitherto been that while these factors are relevant as evidence, it is better not to set them out in the Statute but to give them, as they would be given, their proper weight in general guidance on the implementation of the Bill's provisions, in a circular to magistrates and so on.

That is the view of the Government at this stage. With the exception of the point which I have made—namely, that the fourth element of the Amendment goes, in our view, substantially too far—obviously it is another rather marginal matter whether one includes this in the Bill or prefers to deal with it by means of a circular to magistrates. Again I should be interested at this stage to know the views of the Committee on this point. Certainly the Government will consider the matter and take a final view once they have had the advantage of hearing your Lordships' views, but at the moment we are not persuaded that this Amendment is necessary. The matter could be dealt with by circular. As I have indicated, the fourth proposal in the Amendment goes too far and is, I suspect, rather more restrictive than is the intention of the noble and learned Lord.


I agree with the noble Lord that there seem to be objections to paragraph (iv) which do not apply to paragraphs (i) (ii) and (iii) of the noble Lord's Amendment. Confronted with the problem as to whether or not they were going to grant bail to someone and whether that person had a right to bail under Schedule 1, I should think that the magistrates would have great difficulty in interpreting paragraph (iv) of this Amendment side by side with sub-paragraph (c) of paragraph 1 of the Schedule. Under paragraph (iv) of the noble and learned Lord's Amendment they are asked to take into account …the extent to which actual or potential witnesses for the prosecution may be exposed to contact with the accused if out on bail. When they turn their minds to the unacceptable risk of that person interfering with witnesses, they are then confronted with a different question. It would be perfectly possible to come to the conclusion that potential witnesses might well be exposed to contact with the defendant, yet the same bench of magistrates might come to the conclusion that the defendant would be unlikely to interfere with them.

I should have thought that the attempt to combine these two things would create only confusion in the minds of magistrates. Therefore I should have thought that nothing would be lost if the noble and learned Lord agreed to drop paragraph (iv) of his Amendment. It seems to me that, if it is valuable in the sense in which the noble and learned Lord suggested, all it does is to call to the attention of magistrates for their assistance the kind of things which they ought to have in mind when they are making up their minds. What in particular attracts me is the clear inclusion of the …community ties and associations of the accused". I do not believe that this has appeared hitherto in any Statute.


As we have been asked for our views, may I say that I very much prefer the draft which is in the Schedule to the Bill. Apart from being relevant to the question whether the man is likely to turn up for his trial, I cannot see why the gravity of the offence matters. If I may refer to one point to which nobody has yet referred, we are not talking about the gravity of the offence that the man has committed but about the gravity of the offence which he has committed or of which he is wholly innocent. Everybody of experience knows that the need for bail for an innocent man is the greater the more serious the charge is. We all know how comparatively difficult it is, particularly in any kind of heavy case, for many people to conduct their defence from a prison cell, compared with being free to see their solicitors and to obtain help from witnesses whom they know but their solicitors do not know. Therefore from a very real point of view, the more serious the crime is the greater the need for an innocent man to obtain bail.

Viscount SIMON

Before the noble and learned Lord replies to this short debate, may I ask him a question. I am not clear what is meant by "community, ties" about which we had a little joke. I feel that there is a suggestion in this context that "community ties" might be referring to ethnic minority communities. Surely it would be most unfortunate if the idea ever got about that the possibility of a man obtaining bail might be diminished because it was said that he was a member of a minority community. It seems to me that the word "community" is a little unfortunate because of the way in which it is used in other contexts.


If I may first reply to the noble Viscount who has just asked me a question—may I say in passing what a pleasure it is to answer a question from him because his father was always very good to me and I have always remembered him with very great affection; for many years our friendship was quite close—the answer is to be found in paragraph 62 of the Working Party's Report. Perhaps I had better read it because I do not want either to improve upon it or to diminish it. The paragraph is quite short and reads: Where there is no clear indication from the seriousness or the nature of the offence or from the defendant's record whether bail should be granted or refused, the court will need to rely on its own assessment of the defendant's character in deciding whether he is likely to comply with the conditions of bail if bail is granted. The extent to which the defendant has a stable home background and settled employment—what are generally called 'his community ties'—is likely to be of considerable influence in determining whether he is a good bail risk. We therefore regard it as a matter of considerable importance that courts should have information about the defendant's community ties, since without it they cannot make an adequately informed assessment of the hail risk". In the light of that paragraph, I think that the noble Viscount will find that it is a fairly acceptable phrase which is in fairly common use as a result both of the general parlance of magistrates and of the Working Party's Report.

I am sorry that I cannot help the noble and learned Lord, Lord Gardiner, more about the reasons for the seriousness of the offence being a factor which ought to enter into the mind of a court in granting bail: as to whether the risks of committing further offences, or absconding, or interfering with witnesses are unacceptable. I had thought that it was fairly obvious, but the noble and learned Lord will find that it is set out at considerable length—I think I read it during the Second Reading debate—in paragraph 56 of the Working Party's Report: "The offence charged". The Working Party took a view about the seriousness of the offence which was more or less in line with my view in the last Amendment and argued it at length in paragraph 56.

But the chief point which I have sought to make before and which I will make again now, because the noble and learned Lord seems to be puzzled about it, is that when you are considering whether a person is likely to nobble witnesses, or to run away, or to commit another offence of the same kind while he is out on bail, the seriousness of the offence is a factor which enters into your mind in deciding how likely it is; and the nature of the offence, the seriousness of the offence, is a matter which enters into your mind as to whether or not you ought to take the risk. If he is a very violent character who is always knocking people about and using lethal weapons in support of his desires, quite obviously a much smaller risk will be unacceptable than if the offence he is likely to commit is a comparatively trivial offence of theft. Therefore, the seriousness of the offence is a relevant factor in magistrates' minds in asking the question whether bail should be granted. Indeed, so much is this so that the noble Lord, Lord Wigoder, on Second Reading—and, I think, the noble Lord, Lord Foot, in what he said this afternoon—pointed out that one of the arguments which he thought would tell against the last Amendment which I withdrew was precisely that the seriousness of the offence was a factor which ought always to be borne in mind when one is handling these cases. I have done the best I can with the noble and learned Lord. It may be that he does not understand what I have said or it may be that he does not agree with it, but I do not think I shall improve upon it by repeating it to him.

When I come to deal with the noble Lord, Lord Foot, and the noble Lord, Lord Harris of Greenwich, I am not wedded to paragraph (iv) at all. It seemed to me that it was not any more restrictive than the present practice involved but it seemed to be relevant, coupled with the seriousness of the offence as to the likelihood of the witnesses being "nobbled". I thought it was no more than spelling out the reasoning in the Working Party's Report, although I fully accept that the words do not come from that Report. Perhaps the noble Lord would undertake to propose an Amendment without paragraph (iv) on Report, or if he does not do that I would make a counter proposal that I would propose an Amendment myself, moving out paragraph (iv), on Report. Having heard the argument I should be perfectly content to drop it if it is going to cause any confusion. What I would not be prepared to accept, with great respect to the noble Lord, Lord Harris, is the theory that it could be dealt with by circular rather than in the Bill. I think it is essential to put it in the Bill. If the noble Lord would be more forthcoming about that point we might settle the matter amicably.

I realise that the noble Lord is in some difficulty today. We know that there is not a Home Secretary. I do not want to exploit the noble Lord's difficulties, but one of the reasons why I found it impossible not to take the opinion of the Committee on the previous Amendment was that he would be faced with a situation in which he had a different colleague to deal with before the Report stage and I thought the opinion of the Committee might be of some assistance to that colleague when he makes up his mind about the attitude to take to these matters.

A note has been put before me that I could drop paragraph (iv) if I wish to move the Amendment without it. If that is acceptable to the Committee that is what I will now do, as I am given on fairly solid authority that this is open to me. As I have said, I am not wedded to paragraph (iv). It was included in good faith but I am always open to accept criticism. What I am not prepared to do is to leave it to a circular.

With regard to the first question put by the noble and learned Lord, Lord Gardiner, I have already undertaken that if on reflection he thinks it is necessary to do so in order to safeguard his own Bill I will move—or if he moves it, I will accept—a further Amendment to safeguard it. My thought was that it is not necessary because the Act deals with the matter adequately. In those circumstances if I may move this Amendment without paragraph (iv), I will do so. I beg to move.

Moved, That Amendment No. 15, excluding paragraph (iv), be agreed to.—(Lord Hailsham of Saint Marylebone.)


I am in some difficulty, but not necessarily the difficulty indicated by the noble and learned Lord. I would put it to him with great respect that I have said that I would discuss this matter with my right honourable friend. There are two further stages at which this matter can be discussed—Report stage and Third Reading. I have indicated that I will do so and I should be grateful if the noble and learned Lord would not press the matter this afternoon. We will gladly come back to it on Report stage.


I hate to be horrid so I will not be horrid. I think it will be rather more nuisance to the House because we shall be compelled to have another debate. On the other hand, I have pressed one Amendment and perhaps the Committee would consider it unreasonable if I did not comply with a courteous request, courteously put, but the noble Lord may be quite certain that I shall return to it at Report stage. Having said that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Lord FOOT moved Amendment No. 17:

Page 14, line 32, at end insert: ("( ) This Schedule does not apply where the offence of which the accused or convicted person is accused or has been convicted is not punishable with imprisonment.")

The noble Lord said: I am glad to say, as this is the last Amendment on the Marshalled List, that it is one of almost divine simplicity and raises a matter upon which I hope there will be no disagreement throughout the Committee. It so happens that as the law stands at the moment there are certain circumstances under Section 14 of the Magistrates' Courts Act 1952 in which a person can be remanded in custody while inquiries are made, even though he is charged with an offence for which he is not liable to be prosecuted. This is a very strange state of affairs but it is the way in which 'the law has been interpreted.

When this situation was considered by the Advisory Council on the Penal System in their report on The Young Adult Offender, in 1974, they had these strong words to say: The courts have held that a person may be remanded in custody under Section 14 of the Magistrates' Courts Act even though the offence is not punishable with imprisonment. We are strongly of the opinion that it should not be possible to remand a young adult in custody in such circumstances, and recommend that the law should be amended accordingly. It seems to me that those words, applied as they are there to the young adult, apply with equal logic and sense to all adults. It seems to me to be almost intolerable that people should be liable to be remanded in custody and sent to prison when they are only charged with an offence for which they cannot be sentenced to imprisonment.

The case is so simple that I begin to think I must have overlooked some fallacy in the argument. The noble Lord has not been able to give way to me on any other Amendment, but I hope that he may be able to give way on this occasion. I recognise at once that because some of my earlier Amendments have not been carried the words of this Amendment would have to be amended to read as follows: This Schedule does not apply where the offence of which the accused is accused is not punishable with imprisonment. That is a simple matter of drafting because my earlier Amendments have been rejected. I beg to move.


This matter was dealt with in paragraph 156 of the Report of the Working Party and, if the Committee will forgive me for a moment or two, as it is a matter of some importance I should like to draw the attention of the Committee to precisely what the Working Party said about this. They say: We have referred (in paragraph 146 above) to the fact that the power to remand a person under Section 14(3) of the Magistrates' Courts Act 1952 to enable inquiries to be made is not confined to imprisonable offences, as is the power in Section 26(1) of the Act. We have considered whether the power to remand in custody under Section 14(3) should be limited to imprisonable offences. We consider that in general it is difficult to justify holding a person in custody on remand when he is not liable to imprisonment on conviction of the offence charged and that a remand in custody should, if possible, be avoided in these circumstances. In our experience, however, cases occasionally arise where it is in the defendant's interest to be remanded in custody. For example, it may be apparent to the court that a person who is charged with a minor offence is mentally disturbed. In these circumstances the court may properly wish to adjourn the case with a view to inquiries being made about possible treatment. I will not read on because the paragraph sets out the situation which arises in a minority of cases where, in the view of the Bail Working Party, it is in the defendant's interests that he should be remanded in custody. I emphasise, as does the Working Party, that this arises very occasionally. But it is not our view that it is right to set aside the Working Party's recommendation on this point.


I would venture to hope that the Government will reconsider this before the next stage of the Bill. It has always seemed to me wrong that somebody should be sent to prison under a form of remand, refusal of bail, when it is not an imprisonable offence. Such experience as I have leads me to think that when it is used it is not normally in the sort of case to which my noble friend has referred. When one looks at the cases they seem to be mainly young men and anybody who demonstrates. Of course, all Lord Chancellors—and no one more so than the noble and learned Lord, Lord Hailsham—have always told magistrates that to refuse bail because you think it will do him good or to give him a taste of prison is absolutely wrong. No one has said that more firmly than he has. While I am sure that in general magistrates do not do this, I am afraid there are benches in some parts who on some occasions do in fact do that. It cannot be right, can it, in the case of a demonstrator who sits down on the pavement? The fact that my wife has been so convicted does not, I think, influence me in any way. If the maximum penalty is a fine of £5 or £10, how can it be right that they should be sent to prison straight away by being refused bail? I would hope the Government would give some further consideration to this question before the next stage of the Bill.


Obviously, I will again draw the attention of my right honourable friend to what the noble and learned Lord has said, and what has been said by the noble Lord, Lord Foot. I cannot give any undertaking today. It is a narrow question, but I accept that problems of this kind, if they arise, do cause legitimate concern. Without giving any guarantee, which of course I could not do this afternoon, I will gladly have the matter looked at.


I am much obliged. In those circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 1, as amended, agreed to.

Remaining Schedules agreed to.

House resumed: Bill reported with an Amendment.