§ 7.13 p.m.
§ Report received.
§ Clause 5 [Supplementary provisions about decisions on bail]:97
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich) moved Amendment No. 1:
§ Page 5, line 40, leave out from (4 then ") to (" the court ") in line 41.
§ The noble Lord said: My Lords, I beg to move Amendment No. 1, and perhaps it may be for the convenience of the House at the same time if I speak to, but do not move, Amendments Nos. 2, 3 and 4. I apologise if I inadvertently inconvenienced the House and the noble and learned Lord, Lord Hailsham of Saint Marylebone, as a result of my absence from the House, but on the previous Bill the House moved with greater speed than had been predicted.
§ My Lords, the purpose of this Amendment is to correct an error in the Bill as published. The effect of Clause 5(3), (4) and (5) as it now reads is that the Crown Court, when withholding bail or imposing or varying conditions, is not required to give reasons, written or oral, to a represented defendant unless his counsel or solicitor asks for them. This was not the intention of the Government. It was intended that both the Crown Court and the magistrates' court should be required to give reasons in every case when withholding bail or imposing or varying conditions, but that, whereas the magistrates' court should always give the accused a copy of the note of the reasons, the Crown Court should be required to give such a written note only if, first, the defendant's counsel or solicitor requests it, or second, the defendant is unrepresented.
§ The reason for this distinction is to save unnecessary work at the Crown Court where the defendant is almost invariably represented, usually of course by both counsel and solicitors, and the legal representative ordinarily would take a note of reasons given orally. Most bail applications are, in any case, made to a magistrates' court in the first instance. As I have indicated, this Amendment seeks to put right an error in the Bill. I beg to move.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I have no particular observations to make about this. I am sure we should send the Bill down to another place with this Amendment in it.
98 I have not had time to consider the implications very fully.
§ Lord HARRIS of GREENWICH moved Amendment No. 2:
§ Page 6, line 1, leave out subsection (4).
§ Lord HARRIS of GREENWICH moved Amendment No. 3:
§ Page 6, line 7, after (" shall ") insert (" (except in a case where, by virtue of subsection (5A) below, this need not be done) ").
§ Lord HARRIS of GREENWICH moved Amendment No. 4:
Page 6, line 8, at end insert—
(" (5A) The Crown Court need not give a copy of the note of the reasons for its decision to the person in relation to whom the decision was taken where that person is represented by counsel or a solicitor unless his counsel or solicitor requests the court to do so.")
§ Clause 8 [Bail with sureties]:
§ Lord HARRIS of GREENWICH moved Amendment No. 5:
§ Page 9, line 37, after (" below ") insert (", or in a case where the proposed surety resided in Scotland subsection (5A) below,").
§ The noble Lord said: My Lords, I beg to move Amendment No. 5, and for the convenience of the House, perhaps I might deal at the same time with Amendments Nos. 6 and 7 which incorporate the same point. The purpose of the Amendment is to enable a person in Scotland who wishes to stand as surety in criminal proceedings for a person granted bail by a court in England or Wales, to enter into his recognisance in Scotland before the Scottish police. The Amendment introduces a small but useful improvement in the present bail system, and overcomes a difficulty which has been the subject of criticism in recent years.
§ As the law now stands, a person in Scotland who wishes to stand as surety for a person granted bail in England or Wales has to cross the Border and enter into his recognisance before an appropriate person or court in England or Wales. Even where the Scottish surety is willing and able to do this, it may involve him in considerable expense, and can delay the release of an 99 accused. There are substantial differences between the bail systems in force in England and Wales and in Scotland, and these will remain after the present legislation is passed.
§ One relevant difference is that sureties in the English sense do not exist in Scottish law. The effect of the Amendment would be to give the court in England or Wales which grants bail the power to direct that where a proposed surety resides in Scotland and the court is satisfied of the suitability of the proposed surety, the surety may enter into his recognisances before any constable having charge at any police office or station in Scotland.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I am grateful to the noble Lord for his explanation. I have no particular observations to offer about this change.
§ Lord HARRIS of GREENWICH moved Amendment No. 6:
Page 10, line 38, at end insert—
(5A) Where this subsection applies, the court, if satisfied of the suitability of the proposed surety, may direct that arrangements be made for the recognizance of the surety to be entered into in Scotland before any constable, within the meaning of the Police (Scotland) Act 1967, having charge at any police office or station in like manner as the recognizance would be entered into in England or Wales.".
§ Lord HARRIS of GREENWICH moved Amendment No. 7:
§ Page 10, line 39, after (" (4) ") insert ("or (5A)").
§ Clause 11 [Legal aid for bail decisions in certain cases]:
§ Lord HARRIS of GREENWICH moved Amendment No. 8:
§ Page 12, leave out line 22 and insert (" to the amendments made by this section.
§ (2) In section 28(1) (exercise of powers to grant legal aid), for the words "subsections (2) to (4) "there shall be substituted the words" subsections (1A) to (4) "; ").
§ The noble Lord said: My Lords, I beg to move Amendment No. 8, and perhaps speak at the same time to Nos. 9 to 16 inclusive and also No. 19. This series of Amendments deals exclusively with the 100 question of legal aid, and it is moved as a result of an undertaking I gave during Committee stage to look into a point made by the noble Lord, Lord Foot, that the court should be required to grant legal aid to a defendant remanded in custody for inquiries prior to sentence. The Amendments on the Marshalled List produce this result. This is achieved by inserting into Section 29(1) of the Legal Aid Act 1974 a new paragraph (d), which is the operative part of the Amendment. The other minor Amendments are consequential on this.
§ Generally speaking, a defendant who is remanded in custody for inquiries after conviction will have been granted legal aid at an earlier stage. This Amendment is therefore in the nature of a fail safe provision to cover a relatively small number of cases. Nevertheless, the point raised by the noble Lord, Lord Foot, was not without importance, if I may say so. We are grateful to him for having raised it. I hope the House will accept this Amendment and the others related to it.
§ Lord FOOT
My Lords, I am grateful to the Minister for having brought forward these Amendments, but I am sorry to say that I am doubtful whether they really achieve the purpose I had in mind, or indeed the purpose the noble Lord has in mind. What this clause and this series of Amendments does, as I understand it, is this: first, it adds to those occasions on which the magistrates, or the Crown Court for that matter, are obliged to grant legal aid; it adds to (a) and (b) in Section 29(1) of the Legal Aid Act. The other cases in which it is compulsory for the magistrates to grant legal aid, where the defendant is eligible, is where the defendant is charged with murder, or the prosecutor is appealing to the House of Lords against a decision of the Criminal Division of the Court of Appeal.
This Amendment has the intention of adding to Clause 11 of the Bill as it stands a further situation where it is compulsory for the magistrates to grant legal aid. This Amendment, as I understand it, is to provide for the case where a court—and in particular this applies to magistrates' courts—has before it somebody who has been tried and convicted, and then the magistrates decide that they want to put the case back, remand the case, in order that inquiries of one kind of another 101 can be made. If they are contemplating remanding him in custody, then he shall be provided with legal aid at that stage to argue the matter of bail. That, as I understand it, is the object.
But what in fact happens? The situation which arises is surely this. An unrepresented defendant is before the magistrates' court; he is tried, the magistrates decide to convict him; they decide, because of the inadequacy of the information that they have about him, to remand the case for three weeks, or whatever it may be, for medical report or something of that kind. It is at that moment of time that this clause is intended to give the defendant representation, legal aid, in order to make an application for bail. But how is it accomplished?— because the court cannot foresee that they are going to find themselves in this situation; they cannot foresee that they are going to convict him and then set the case back for a period of time. The processes by which legal aid is obtained—that is, filling up an application form, nominating a particular solicitor, investigation into the means of the defendant to see whether he is eligible for legal aid—cannot be gone through at that point of time.
The magistrates would be in an impossible situation. They are being required compulsorily to provide legal aid for that person at that moment, and before he is sent away into custody, in order that he can make his application for bail. But you cannot go through the machinery by which legal aid has to be obtained under the Legal Aid Act. When a duty officer is available he can make an application, but that is not under the Legal Aid Act at all. He is not providing legal aid under the Legal Aid and Advice Act. If you want to give a person legal aid under the Legal Aid and Advice Act, you have to go through the procedures of filling up a form, nominating a solicitor, inquiring into the person's means and the rest.
The only way in which I can see this being put right would be by adding some words to this clause providing, say, that in such a situation as this, where the magistrates have convicted and are minded to send the case back for inquiries, they should be under an obligation to remand him for not more than 24 hours in order that the legal aid procedures can be complied with and somebody found to represent him.
102 I am afraid that at the moment, as it stands, it seems to me, regrettably, that this is really quite unworkable. The magistrates would be faced with an intolerable situation, because, under Section 29(1) this is one of the cases where it is compulsory for them to provide legal aid, and yet they do not have the means and machinery by which they can do it. Although I have no doubt that the Government's intention was to try to meet one of the situations I was talking about at Committee stage, I am afraid this does not really accomplish it. I would respectfully recommend to the Minister that he should take this back again and see whether the machinery could be put in order, because at the present moment it seems to be me to quite unworkable.
§ Lord HARRIS of GREENWICH
My Lords, the Government will, of course, gladly consider whether, at a later stage, there is a need to look at the precise phraseology of this series of Amendments. If the noble Lord will forgive me, I do not take quite such a pessimistic view as he does. I accept, of course, that we are talking, as I indicated earlier, about a relatively limited number of cases. I am not sure—and I would not want to commit myself at the moment—whether the precise formula the noble Lord has suggested would be a particularly appropriate or workable one; namely, to put a case back for 24 hours, during which period, the legal aid certificate having been granted, there would be a second appearance. I will gladly look into the matter, but the noble Lord will understand that I cannot commit myself at this stage.
I think, as he rightly says, we are talking here about the post-conviction situation, as to what one does in a case of a person who the court decide they wish to remand in custody particularly for medical reports. When they have seen a defendant, let us say on the morning after, they come to the conclusion that they want some form of psychiatric or medical examination. I will look into the point which the noble Lord raised as to whether at a later stage this particular formula which he has suggested is capable of being implemented, but, as he will recognise, I could not commit myself at this juncture.
§ Lord HAILSHAM of SAINT MARYLEBONE
Is the noble Lord suggesting 103 that he should withdraw his Amendment pending this consideration, or that we pass his Amendment?
§ Lord HARRIS of GREENWICH
I am suggesting that the House should pass the Amendment and then we will look into the question of whether, at a later stage of the Bill, we can go into this point.
On Question, Amendment agreed to.
§ Lord HARRIS of GREENWICH moved Amendments Nos. 9, 10, 11, 12, 13, 14, 15 and 16 en bloc:
§ Page 12, line 23, leave out ("(a)") and insert (" (3) ")
line 29, leave out ("(b)") and insert (" (4)")
line 32, leave out (" further ")
leave out lines 42 to 45 and insert—
(" (5) After paragraph (c) of section 29(1) inserted by subsection (4) above, there shall be added a further paragraph (preceded by the word or ") as follows—
"(d) where a person who is to be sentenced or dealt with for an offence by a magistrates' court or the Crown Court is to be kept in custody to enable inquiries or a report to be made to assist the court in sentencing or dealing with him for the offence; "
(6) After section 29(1) there shall be inserted the following subsection—
(1A) Nothing in subsection (1) above shall require a magistrates' court, in the circumstances mentioned in paragraph (c) of that subsection, to order that the person charged ").
Page 13, line 7, leave out ("(c)") and insert (" (7) ")
line 9, leave out (" Subsection (1)(c) ") and insert (" Paragraphs (c) and (d) of subsection (1) ")
line 16, leave out ("(d)") and insert (" (8) ")
line 21, at end insert—
(" (9) In section 30(12) (interpretation), for the words "In section 28 above" there shall be inserted the words "In sections 28 and 29 above".").
§ Schedule 1 [Bail of accused persons: supplementary provisions]:
§ 7.32 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE moved Amendment No. 17
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:
§ The noble and learned Lord said: My Lords, I think that I can take this Amendment quite shortly because of an indication which has courteously been given me by the noble Lord on the Government Bench. I need not explain its purpose at any great length because the Committee stage is still fresh in your Lordships' minds. I would say in passing that I would, following an undertaking I made in Committee, have accepted the Amendment to it which the noble and learned Lord, Lord Gardiner, has down on the Marshalled List. If, as I anticipate, the Government say that they want to draft an Amendment of their own at a subsequent stage embodying the principle of mine, then of course the noble and learned Lord's Amendment will suffer the same fate as mine. I am sure that he will accept from me that I am entirely behind him in making this change in my own Amendment, as I promised to be on the earlier occasion.
As I explained at a previous moment the object of this is to give a court, in coming to the conclusion which is prescribed for it in the amended form we passed on Committee, a number of guidelines as to the kind of thing they ought to look at. There is the general phrase, of all relevant considerations", and then, "without prejudice to the generality" of that general phrase, three matters are now included. These are:
… the seriousness and nature of the offence alleged; the character record and community ties and associations of the accused; 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 omitted the fourth factor which I had originally proposed in Committee because it ran into criticism from the Committee when I proposed it and i thought that it was fair to propose it at this stage in the shorter form. I shall not expatiate on 105 that point, because all I am now doing is to move the Amendment formally in the hope that the noble Lord will see his way to accepting the principle which underlines it. I beg to move.
Lord GARDINER moved Amendment No. 18 as an Amendment to Amendment No. 17:
In Head (ii), after (" record ") insert (" other than a conviction which has become spent under the terms of the Rehabilitation of Offenders Act 1974").
§ The noble and learned Lord said: My Lords, I beg to move Amendment No. 18, and perhaps my noble friend Lord Harris would deal with it in his reply.
§ Lord HARRIS of GREENWICH
My Lords, I shall gladly do that. First, as the noble and learned Lord, Lord Hailsham of Saint Marylebone, indicated, we have considered this matter, as I said we would, and I have discussed this matter with my right honourable friend the Home Secretary, and it is our intention to put down an Amendment at the Third Reading of the Bill in this House to deal with this particular point. As the noble and learned Lord will recognise, there are certain drafting difficulties, although he has got very nearly alpha for his drafting capacity, but I think we must go even further to attempt alpha plus, so far as this Amendment is concerned. That being so, in the interval between now and Third Reading of the Bill, we should like to look at the precise drafting of it.
Might I just deal briefly with the Amendment of my noble and learned friend Lord Gardiner. I am not clear whether my noble and learned friend would like to intervene at this stage, or whether it would be appropriate for me to speak after he has spoken to his Amendment.
§ Lord HARRIS of GREENWICH
My Lords, the noble and learned Lord is right; he has. I will certainly consider carefully this point made by my noble and learned friend. As I hardly have to tell him, he having been the person who inspired the passing of the 1974 Act, the 106 Act provides that, subject to certain exceptions provided for in it, or by order, a person can become rehabilitated in respect of a conviction for which any sentence was imposed except severe sentences of two and a half years or more, which are excluded for the purposes of rehabilitation, provided that during the rehabilitation period he does not receive a sentence of the excluded kind for a further conviction. The effect of rehabilitation is that for most purposes a rehabilitated person is to be treated as if he had never committed, been charged with, or convicted of, or sentenced for the offence concerned. Thus he does not have to reveal it or admit its existence when applying for a job, and an employer cannot refuse to employ someone, or dismiss someone, on the grounds that he has a spent conviction. However, a major exception provided for in the Act itself is that the Act does not, as a matter of law, apply to criminal proceedings. Evidence of spent convictions is therefore admissible in such proceedings before a court in Great Britain. My noble and learned friend's Amendment to exclude information about spent convictions being available to a court which is considering the grant of bail would therefore constitute a reversal of the exception provided in the Rehabilitation of Offenders Act.
If such convictions are admissible for other purposes in criminal proceedings, it seems to us to be inconsistent to create a special exemption for bail applications. Moreover, it can reasonably be contended that where a court is considering the question of whether it is probable that a person will fail to appear for his trial, and that person has previously failed to appear, a previous conviction on this ground would remain relevant indefinitely for this particular purpose, though of course clearly its importance would diminish over a period of time. That is our view of the matter. We are making here a significant change in the law as it applies to bail applications, but as we at present consider the matter we are not convinced that it is appropriate to pass an Amendment of this sort which would in fact have the effect of excluding information from the court.
§ Lord WIGODER
My Lords, might I speak on the principal Amendment rather than on the Amendment to the Amend- 107 ment. I would welcome the principle expressed in the Amendment in the name of the noble and learned Lord, Lord Hailsham of Saint Marylebone, particularly where it makes clear, I hope, once and for all, that the seriousness of the offence is not in itself a ground for objecting to bail but simply a highly relevant matter which the court must consider in deciding whether there is an unacceptable risk that the accused would fail to surrender to custody.
If the Minister is going to reconsider the wording of the Amendment, might I ask him to consider whether, when the question is raised as to the wording, "the seriousness and nature of the offence alleged", there ought not to be included some reference to the nature of the evidence or the strength of the case against the defendant. I say that for this reason: a very serious offence, where there is a written admission of guilt, might lead a court to say that that in itself might provide an unacceptable risk that the accused may fail to surrender to custody. Precisely the same offence, where the only evidence is the rather dubious fleeting identification of a single prosecution witness, might lead a court to a wholly different view, and in those circumstances, although I concede of course that the matter is covered by the general expression "take account of all relevant considerations", I would ask the Minister to consider whether it might not be preferable that a specific indication should be given that the weight of the evidence is a matter that might be borne in mind.
§ Lord GARDINER
My Lords, in view of what my noble friend Lord Harris of Greenwich has said, I shall ask leave to withdraw my Amendment to the Amendment. But first let me say that I accept the view which he has put forward in relation to the courts so far as being outside the Act, but I submit that, having regard to the fact that no serious criminal, or at least nobody who has had a sentence of more than two and a half years, has had the Act applied to him at all, and in view of the time in any event which must pass, the courts ought not in fact in relation to bail have to deal with spent convictions at all. I should like to know, if not at this stage then at the next stage of the Bill, whether the Government 108 would not agree that this should be dealt with in the way in which court proceedings are dealt with in relation to the Act, namely, by a direction from the Lord Chief Justice and advice to magistrates by the Home Office, which I understand is now working extremely well. Subject to that, and while associating myself largely with the views which the noble Lord, Lord Wigoder, has expressed about the Amendment, I beg leave to withdraw my Amendment.
§ Amendment to the Amendment, by leave, withdrawn.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, that leaves the substantive Amendment. I am very grateful for the way in which the noble Lord, Lord Harris of Greenwich, has dealt with it and in view of the fact that he has promised to deal with it in that way, I shall in a moment ask leave to withdraw that one, too. Regarding the controversy between the noble and learned Lord, Lord Gardiner, and the noble Lord on the Front Bench, I shall observe a totally neutral attitude, probably willing to take the Government's view about it. I had at first sight, as Lord Gardiner knows, wholly endorsed what he had said and I do not want at the moment to resile from that position. I fully accept what the noble Lord, Lord Wigoder, has said about my Amendment. With those brief comments, I beg leave to withdraw my Amendment, No. 17.
§ Amendment, by leave, withdrawn.
§ In the Title:
Lord HARRIS of GREENWICH moved Amendment No. 19:
Line 5, at end insert (" and for legal aid for persons remanded in custody for inquiries or reports ").