§ 6.18 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, I beg to move that this Bill be now read a second time. My Lords, this Bill emphasises the Government's concern over the size of our prison population, and their desire to see that bail is given in all cases where this is reasonable. The House will recall that this problem of bail was dealt with in the Criminal Justice Act 1967, and if I may be forgiven a trip down memory lane—on which I hope I shall carry the noble and learned Lord, Lord Hailsham of Saint Marylebone, with me—I well remember that Bill for a number of reasons. One is that I had the pleasure of hearing the noble and learned Lord speak on this Bill on a number of occasions in another place when I was sitting in the Officials' Box in the Standing Committee. The Bill went fairly wide—well outside the area of bail. It dealt with the question of parole, on which the noble and learned Lord made a number of the most significant proposals, as a result of which the Government accepted that his proposals were more satisfactory than theirs; and that has in fact been the basis of our parole system since then. Secondly, the noble and learned Lord and my right honourable friend the Home Secretary joined together in a coalition against the legal conservatives of both 501 Parties in the matter of majority verdicts. That was a departunre from the existing situation which no one has subsequently challenged but which was then regarded, as the noble and learned Lord will recall, as a particularly revolutionary doctrine.
We dealt with those two particular problems, I think, in a fairly satisfactory way, but we did not deal as well with the question of bail. The Act provided that bail should not be refused except on one or more of a number of listed grounds. It also provided that the reason for refusal should be given if the defendant was not legally represented, or if his legal representative asked for it. However, the provision did not apply to all accused, but only to those accused of lesser offences. The percentage of remands in custody fell, it is true, from 33.9 per cent. in 1967 to 15 per cent in 1974. Nevertheless, in 1974 over 51,000 men and women were received in prison before they had been tried for criminal offences. With the great pressure on our prisons caused by rising crime, this is not a figure which any Government can afford to ignore.
The present Bill attempts to improve on the provisions of the 1967 Act. Governments of both Parties have recognised the need for some improvement. In 1971, the previous Administration set up a Working Party on Bail Procedures in Magistrates' Courts, at the suggestion of the Magistrates' Association. We are indebted to the members of the Working Party for their thorough review of the law and practice and for their detailed recommendations, which were unanimous. Some of these recommendations could be implemented without legislation, and we commended them to magistrates, chief constables, probation committees and others concerned in a circular last October. The present Bill seeks to implement those recommendations which require legislation.
Before turning to the main provisions of the Bill, I should mention the Government's general objective. We are concerned to improve the quality of bail decisions. It is an axiom of British justice that there is a presumption of innocence; and I do not think it is in dispute that an accused should not be remanded in custody unless there are compelling reasons for doing so. Of course, such compelling reasons some- 502 times exist. In addition, we must recognise that decisions on the grant or refusal of bail present peculiar difficulties which I suggest do not apply, at any rate to the same extent, to other judicial decisions. The first decision has to be taken shortly after the arrest, when information must necessarily be limited. It is, by its nature, a forecast of future conduct, not simply an assessment of past conduct, and must therefore be based on probabilities.
The administrative recommendations we included in our circular last October were largely directed to improving the information on which these decisions are based. In particular, the circular asked courts to consider the introduction, within existing resources, of bail information schemes. It may be helpful if I describe the background to these. The Working Party noted that the Manhattan Bail Project of the VERA Institute of Justice in New York had achieved significant results by providing verified information to courts concerning community ties of persons making their first appearance in court. The Working Party considered that experiments of a similar nature to the Manhattan Project might provide lessons for the operation of bail procedures in England and Wales. As a result, in November 1974, with the agreement of my right honourable friend the Horne Secretary, two members of the staff of the VERA Institute were seconded to the Inner London Probation and After-Care Service to collaborate on a number of projects—the first of which was a pilot bail information scheme.
The pilot project was launched in Camberwell Green Magistrates' Court in March of last year. Similar schemes have since been started in the Thames and Horseferry Road Magistrates' Courts. The schemes aim to test the feasibility of gathering, verifying and presenting to magistrates, relevant information on any defendant at risk of being remanded in custody. The task of collecting, verifying and presenting information has been undertaken by ancillaries employed by the Inner London Probation and After-Care Service and by volunteers. I had the opportunity of seeing this scheme in operation a few months ago. Although it is of very limited duration in so far as it was introduced only last March, there 503 is no doubt that quite a number of criminal defendants are now receiving bail who otherwise would have been remanded in custody. As I have indicated, we have drawn the attention of the Probation and After-Care Committees to the experiments in London so that they can consider whether within existing resources they can introduce bail information schemes in their own areas.
The aim of the circular last October was, in large part, to improve the information on which the decision about bail is based. The Bill is directed, among other things, to the giving of guidance as to the criteria to be applied in reaching that decision, and requires the giving of reasons so that consistent practices may be developed. The Government believe that these provisions, together with the new statutory presumption in favour of the grant of bail, to which I shall refer again later, will result in more people being granted bail than hitherto.
My Lords, it may be appropriate if I now refer briefly to the main provisions of the Bill. Clauses 1 and 2 of the Bill consist of definitions of terms. Clause 3 is important because it sets out a new concept of bail. It provides that any person granted bail in criminal proceedings is under a duty to surrender himself at the time and place appointed, which will, of course, ordinarily be the time and place appointed for his trial. It also provides that this duty is enforceable in accordance with Clause 6; in other words, it will be an offence for a bailed person to fail without reasonable cause to surrender himself at the appointed time and place. The old system of taking recognizances from the accused is abolished. An additional power is provided in subsection (5) of Clause 3 to require an accused who is unlikely to remain in Great Britain until the time appointed for him to surrender, to give security for his later appearance. Hitherto, this power has been confined to the High Court and Crown Court. Its purpose is to facilitate the release on bail, where appropriate, of the increasing number of people resident abroad who may be charged with an offence whilst on a visit to this country—an inevitable product of greater freedom of movement, particularly 504 within the European Economic Community.
Clause 4, which confers a general right on accused persons, is the most important provision of the Bill. Subsection (1) provides expressly that a person accused of an offence shall be granted bail unless he falls within one or other of the exceptions set out in Schedule 1. The Schedule provides that the accused need not be granted bail if the court is satisfied that it is probable that the accused, if released on bail, would fail to surrender at the time and place appointed or would commit an offence whilst on bail, or would interfere with witnesses or otherwise obstruct the course of justice. He also need not be granted bail if the court is satisfied that he should remain in custody for his own protection or (if he is a child or young person) for his own welfare. There are also two other obvious exceptions; that is, where the accused is already serving a sentence, or where the court is satisfied that it has not been practicable in the time available to obtain sufficient information on which to base a decision.
These main criteria for the grant or refusal of bail are based on the common law, and are already well known to magistrates from a statement by the noble and learned Lord, Lord Hailsham of Saint Marylebone, when speaking to the Gloucestershire branch of the Magistrates' Association in September 1971. As I have mentioned earlier, the 1967 Act adopted a different approach, by listing a number of specific factors which the magistrates might take into account. It has, however, been urged on us on a number of occasions, both by the Working Party and in debates in this House, that a better approach is the one now adopted in this Bill, that is to say to recite the essential criteria and to treat other circumstances, such as the absence of any fixed abode, as merely factors to be considered among others as an indication of whether or not the defendant, if remanded on bail is likely to abscond.
Clause 5 of the Bill is also of considerable importance. This clause requires that a record shall be made of the terms on which bail is granted, and that if the defendant requires a copy it shall be given to him. This is necessary to ensure that the defendant knows his obligations. Subsection (3) provides that where a 505 court withholds bail in criminal proceedings or imposes conditions on the grant of bail or varies these conditions, it shall give reasons for its action. The purpose of this requirement is to enable the defendant to consider an application for bail to another court, and it will have the further advantage of directing the minds of the magistrates or of the judge to the need to comply with the requirements of Clause 4 and to enable consistent practices between different courts to be developed.
Clause 6 creates the offence of absconding by a person who has been released on bail. Proceedings can only be brought for failure to surrender without reasonable cause. The creation of this offence is a necessary consequence of the conferring by Clause 4 of a right to be granted bail without application, unless one or other of the exceptions in the first Schedule applies. It also has the further advantage of deterring a person released on bail from failing to surrender, and thereby making it more likely that the courts will be willing to grant bail in a marginal case. The provisions about the offence are aimed at ensuring, wherever possible, that the offence of absconding can be dealt with at the same time as the main offence with which the defendant has been charged.
Those are the most important provisions of the Bill. As to the remainder, Clause 7 is mainly procedural, being a recital of the liability to arrest for absconding or breaking bail conditions. Clause 8, which relates to sureties, defines, for the first time in a Statute, the factors which should be taken into account when consideration is being given to the acceptability or otherwise of a surety. It makes it clear that the decision as to the suitability of the surety is one for the court and not for the police. I should add that in our October circular we drew to the attention of the courts the conclusion of the Working Party that sureties should not be required as a matter of course, and that the court should first consider whether the defendant can safely be released on bail without sureties.
Clause 9, which creates a specific offence of agreeing to indemnify sureties in criminal proceedings, is one step on the way to reforming the law of conspiracy. It is already an offence under 506 the common law of conspiracy to indemnify a surety, and this clause is included to replace the common law on this point. The Government agree with the Working Party that it is essential to retain this offence since otherwise we would be in danger of developing the "bail bond" system current in the United States—I think all of us, and also a substantial number of people in the United States, would consider such a development here to be highly undesirable.
Clause 10 extends existing law by allowing coroners to grant bail to a person charged by a coroner's inquisition with murder, as well as to a person charged with manslaughter or infanticide. The Government have already indicated their intention of altering the existing law requiring coroners to commit for trial persons who have been named by a jury as responsible for a death, where the verdict is one of homicide. They still intend to introduce such legislation in due course. However, until such legislation is introduced, it is necessary to keep the law on the granting of bail by coroners in line with the general law and, in particular, to ensure that a person charged is at no disadvantage through being committed by a coroner's inquisition.
The purpose of Clause 11 is to ensure that an unrepresented defendant who is in danger of being remanded in custody shall be granted legal aid for bail purposes on his second appearance, if he is not (but wishes to be) legally represented. The clause has to be read together with the Legal Aid Act 1974, which it amends in this respect. It is designed as a safety net rather than as an operative provision. The defendant would often have been represented on his first appearance by a solicitor engaged privately, by a solicitor he had obtained on legal aid while in custody after arrest, or by a duty solicitor at one of the 45 courts (including many of the larger ones) where duty solicitors are available. If not, he would ordinarily have applied for, and obtained, legal aid while in custody between his first and second appearances. If, however, he has still failed to obtain representation but desires to have it, and does not have sufficient means to pay for it himself, the provision requires the court to grant legal aid on his second appearance. 507 Clauses 12 and 13 are procedural. As regards the Schedules, I referred to Schedule 1 when speaking about Clause 4. Schedule 2 is substantial because of the antiquity of bail procedures. Schedule 3 contains the repeals and Schedule 4 the necessary transitional provisions. This Bill is of very considerable importance, both as an additional protection for our country's liberties and because of the beneficial effects which we hope will flow from it, not least on the size of the prison population. Its provisions have been generally welcomed. Legislation can, of course, meet only part of the problem. Administrative measures, as well as the general attitude of all those concerned in the decision-making process, are perhaps of even greater importance. Nevertheless, this legislation is an important step forward and, as such, I commend it to your Lordships' House. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Harris of Greenwich.)
§ 6.36 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I know that the House, even at this relatively late hour, will be grateful to the noble Lord for his introduction of the Bill, and I should like to thank him personally for the various friendly references which he made to me during his speech. It is, of course, the case that neither as shadow Home Secretary in another place, nor, I hope, in this place, have I ever treated the criminal law as a proper vehicle for either histrionics or Party politics. I think that is a highly desirable tradition that we should seek to maintain.
I believe that this Bill will probably receive a chorus of approval and I am a little sorry that the remarks I am about to make may be rather more critical than I should have wished. But I believe that one is under an obligation to give the benefit of such experience as one has and to give advice in these cases. In the present case I feel that a few rather critical remarks would not be out of place. First, of course, I accept the general philosophy of the Bill, which is that in all cases where a person has not been convicted the presumption must be in favour of bail, and it should be a fairly strong presumption. For that reason, of 508 course—as the noble Lord has indicated, I made this very clear during my tenure of Office as Lord Chancellor in a speech to which he referred—there can be no question but that one would support the statutory presumption recommended by the Working Party and, indeed, contained in the Bill.
Having said that, however, it is very clear, is it not, that where the accused has not been convicted the withholding of liberty is in itself an evil, which can be justified, if at all, only on the grounds of public policy? The noble Lord, quite rightly, referred to the prison population and the desire to clear the gaols; and no doubt there will also be a saving of public expense by not keeping people in prison. But we should keep this very much in the background because the real question surrounding bail is not whether you spend money on building more prison places and keeping people in prison, but whether or not you deprive people of their liberty. This is, at least in my opinion, a matter of a quite different order of importance.
Also, there can be no question but that I would accept at once the abolition of the own recognisances procedure. Equally, I see nothing to complain of in the proposal for legal aid on a second appearance in court, although I would personally hope that by that time, if there were any question of a custodial sentence, the accused would have got legal aid. In the ordinary course that would extend to applications for bail wherever necessary, so I do not attach a great deal of importance to it. I also accept the view that it should be a substantive offence to fail to surrender to bail, instead of going through this mysterious business of estreating the recognisances. I also agree that an agreement to indemnify the sureties against bail should be a substantive offence, instead of depending as it does now upon the law of conspiracy.
Having said that, I am bound to say that there are defects in this Bill which I think, on balance, will cause it in its present form—although the points I shall make could be put right in Committee—to do a little more harm than good. But may I start by making one or two general observations. There are five separate different occasions upon which bail may be asked for and granted, and the considerations in each of them are not the same. 509 First, there is bail on a remand after a a charge has been brought, but before committal for trial. As I understand it, the Bill applies to that, among others. Secondly, there is bail after committal: that is to say, after it has been conceded or proved that a prima facie case exists, because otherwise a committal is not justified. Thirdly, there is bail during the actual trial, on the adjournment of the case, while it is in progress whether the case is summary or on indictment. Fourthly, there is bail after conviction and before sentence; and, fifthly, there is bail after conviction and sentence, and pending appeal. As I understand it, the first three cases which I have mentioned, which are all before conviction, are affected by this Bill, but the fourth and the fifth, after conviction and before sentence or after conviction and sentence and before appeal, are not affected by this Bill. I ask the noble Lord to confirm that view, because a member of the Judiciary has written to me asking me to raise this point. That is the first general observation I want to make.
The second point I want to make is that it is sometimes said—certainly not by the noble Lord in his speech and, I think, not by any reputable source—that there is a general case for asserting that, on the whole, magistrates are too harsh in withholding hail. This charge is, I think, wholly untrue. We have the lowest figures in Europe for persons held in prison awaiting trial, and I think the lowest figures in the West. It is probably worth while putting on record what I understand to be the league table, if that is the right phrase, and the figures are all per 100,000 of the population, which is not a bad test.
Sweden and the United Kingdom are equal top of the league with 6; Australia comes next at 8; Holland, 10; Canada, 12, equal with Norway; Belgium, 13; Denmark, 17; Spain, oddly enough, also 17, which is lower than France at 21; West Germany, 26; and Italy, 28. In other words, we have half as many people in prison awaiting trial as in Canada and Norway, less than a third as many as France and less than a quarter as many as West Germany. On the other hand, one must also point out that it is not possible to ensure that nobody awaiting trial who is ultimately acquitted will be refused bail on remand. For that 510 purpose I refer to, and quote, paragraph 79 of the Working Party's Report, in which they refer to the same speech of mine when in Office as the noble Lord referred to, and as regards the then figures, which I think I gave in 1971, of those remaining in custody between 4 per cent. and 5 per cent. were eventually acquitted altogether. I regarded the last proportion as reasonably low, since, of course, of pleas of not guilty 40 per cent. were normally acquitted, and that meant that, on the whole, magistrates were granting bail in cases likely to be acquitted. I noted in passing that since 1967—as the noble Lord pointed out—the figures had dropped by about half. So that I was about midway in that period, and I think they have since fallen again.
I went on to say:It is obviously regrettable that anyone ultimately acquitted should spend his time before trial in custody. But provided we all do our best to keep the figure at a minimum I think we are entitled to point out that in any system like our own., where the scales of the ultimate trial are rightly, but heavily, balanced in favour of the defence, it is reasonable to believe that the actual amount of injustice is much smaller than even these figures would seem to indicate.The Report went on:Nor is the fact that a person who has been remanded in custody subsequently receives a non-custodial sentence necessarily an indication that the original decision to refuse bail was unjustified.Those words, again, are taken from the Report of the Working Party, where they point out that there are two good reasons for that: first, the likely sentence to be ultimately imposed by the court is only one of the many considerations which may affect the success or otherwise of the application; and, secondly, where a person has been in custody awaiting trial the court will take this into account in determining the sentence. There has been, both on the television and on the radio, sonic attempt by the publicists to suggest that there is a general case against the present system. I do not think that is true, for the reasons which I have been seeking to give.
I now come to the criticisms which I desire to make of the Bill as it stands. I state them with some diffidence, but I am fortified by the fact that I know that in doing so I am reflecting the view of the Criminal Bar Association who have issued a document through the Senate of 511 the Inns of Court and the Bar, and certainly of at least one important member of the Judiciary with whom I have been in contact, and who approached me of his own accord to raise the points which I am now raising.
The first point to which I draw attention is the curiously inverted language of paragraph 1 of Schedule 1, when read with Clause 4. It seems to be designed to give the impression that justices retain a discretion, when in fact the discretion is being removed as a result of the way in which the clause and the Schedule are drafted. About this, the Criminal Bar Association has this to say and I do not think I can better their language. They say on closer examination, having given the kind of general welcome to the Bill that I have been trying to give:…it appears that the policy the Bill has adopted may sacrifice one existing consideration for bail-"—I will come to that in a moment—and provide a procedure for satisfying the Court of the objections that not only involves an unacceptable risk, but goes much further than paragraph 56 of the Working Party's report, and they go on to elaborate that in some following paragraphs. They then say this, with which I agree:To satisfy the court that conduct is probable seems to us to be a needlessly high burden to discharge where the risks involved to the public are high as exceptions 1(a) to 1(c)".If you look at the Bill, your Lordships will see that subsection (1) of Clause 4 states:A person to whom this section applies shall be granted bail except as provided in Schedule 1".If your Lordships turn to Schedule 1 and the exceptions to right to bail, it will be seen that paragraph 1 reads as follows:The accused need not be granted bail if the court is satisfied that it is probable that the accused, if released on bail (whether subject to conditions or not) would—I would say without doubt that this is to put on the authorities an unduly high burden when one has regard to the serious consequences of going wrong in regard to the necessary protection of the public. 512 The member of the Judiciary who has been in touch with me says, even more strongly:
- (a) fail to surrender to custody, or
- (b) commit an offence while on bail, or
- (c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person."I hope something can be done about the Inverted language of paragraph 1 of the First Schedule. It seems to have been designed to give the impression that the Justices retain a discretion when in fact any such discretion is being removed. It is difficult to imagine a situation in which the Justices are satisfied that it is probable that the accused would fail to surrender. I imagine that a change at this point would be more difficult to obtain; it certainly seems to me to create a situation in which a refusal of bail would be almost impossible".That is also the view of the Criminal Bar Association who say this:If an officer has evidence or information which satisfies the court that such a risk"—that is, a risk of the kind enumerated in paragraphs (a) to (c) of paragraph 1 of Schedule 1—is a real possibility we would argue that the Court ought to have the power to refuse bail. Critics who fear that such wide powers would be abused and would lead to large scale, unnecessary remands in custody may surely have their fears allayed by the wording of the Schedule that even if such a possibility were held to be a reality the accused need not be granted bail but by the same token he may he granted bail if the Court so directs".I might add to that, of course, that the accused can make repeated applications, first to the court originally granting or refusing bail, or to the judge in chambers or to the judge of the Crown Court.
The first question, therefore, which I raise is whether the language of Schedule 1 does not impose too high a burden on the court so as to render the refusal of bail a virtual impossibility. This is the considered opinion both of a member of the Judiciary and of the Criminal Bar Association whose opinions I happen to share and it is the main reason why I consider that in its present form the Bill will do more harm than good in so far as the legitimate requirement of protection of the public is not sufficiently safeguarded.
The second point I make is as regards the other point raised by the Criminal Bar Association. Hitherto, it has been elementary in the granting or the withholding of bail that on very serious charges—let us say, murder, or treason, or very serious assaults of violence—the mere seriousness of the offence is in itself a reason not to grant bail. That it should be so was clearly indicated by the Working Party who, in paragraph 56, after 513 considering the arguments on both sides, came to this conclusion:The first factor"—this is a factor which is not included as a factor in the Schedule to the Bill—which the court should consider is the seriousness and nature of the offence charged. It would be impracticable to divide offences so as to say that persons accused of certain offences should normally have bail and those accused of other offences should be remanded in custody, since many offences, such as theft and criminal damage, cover a very wide range of gravity and much depends on the circumstances of the individual offence. However, the more serious the offence charged, the stronger the temptation to abscond is likely to be, since a defendant who is liable, if convicted, to receive a long sentence of imprisonment has more incentive to abscond than one facing a less serious charge. Moreover, the more serious the offence, the smaller is the risk that can justifiably be taken either in the defendant's absconding or of his committing offences similar to that with which he is charged. Indeed, in our view there may exceptionally be occasions when all the circumstances of the case make the offence so grave and so shocking to public opinion that bail can properly be refused on this ground, even though the danger of absconding or of offences being committed if bail is granted is slight. We accept that usually the seriousness of the offence is closely related to the Likelihood or otherwise of the defendant's answering bail. It seems to us, however, that cases can arise in which it is artificial to regard this only as an indication of the defendant's likely reaction to bail rather than as a reason in its own right for refusing bail. At the other extreme, the comparative triviality of the offence may of itself indicate that a remand in custody is not justified…".That was the very clear recommendation of the Committee and I am bound to say that it met with my complete approval. The Criminal Bar Association came to exactly the same conclusions. After quoting paragraph 6 they said:We are so wholly in agreement with the force of this paragraph that both in the evidence which we gave to the Working Party and in our reaction to their report we found no area with which we were in fundamental disagreement.They went on to say that it was because of their agreement with the Working Party in this respect that they had welcomed the Report. They ended with this recommendation:We therefore recommend that Schedule 1 be redrafted to read—'The accused need not be granted bail if the Court is satisfied upon evidence that it is possible that the accused, if released on bail'"—514 then follow the words as in paragraph 1 (a) to (c)—and that a clause be inserted in Schedule 1 to give the Court powers comparable with Section 18(5)(f) of the Criminal Justice Act 1967 to give effect to paragraphs 56 and 57 of the Working Party's report".The member of the Judiciary who has been in touch with me put this point first in his letter to me. He said:First, the obligation to grant bail does not except a case where the gravity of the offence requires custody. It follows that the most bloody murderer can demand bail"—he must not assume, of course, that a conviction has taken place but this is how he put it to me—as long as there is no reason to suppose that he will fail to surrender, commit an offence while on bail, or interfere with witnesses".Although I have made a modest criticism of what this member of the Judiciary wrote to me, the sentiment is one with which otherwise I wholly agree. I am sorry that this is taking rather long, but it is important that I should put these points on the Record.
I move now to much less serious criticisms. The third point I should like to make is that anyone who has glanced at the Working Party's report will see that the following criteria are stressed, and so far as I know they are nowhere to be found in this piece of legislation. There are just four criteria. The first is the strength of the case against the defendant. This is of great importance in those cases where bail is granted or refused during an adjournment or after committal.
The second is the defendant's antecedents which render it certain in some cases that there will be a custodial sentence if conviction follows, and certain in others that there will not. Thirdly, there is the likely sentence from the nature of the case, and the last and—this was referred to by the noble Lord in his opening speech—the defendant's community ties and whether or not he has these ties to keep him in order while the point is pending.
The last point I want to make—and I think this really is the last—is that it is crucial for the proper implementation of the Working Party's report that adequate information—and vastly improved information, if I may say so—should be available to magistrates before they are in a 515 position to implement the recommendations adequately. The noble Lord, quite rightly and with my entire approval, mentioned the various projects which at the moment are on foot to achieve that purpose, but of course they are available only in a limited range of courts at the present time and I am bound to say, without in any way criticising the noble Lord, but simply taking facts as they are, that in this period of financial stringency I doubt whether the implementations could be much more widely available. Simply looking at it from this point of view I should be happy if they were so.
I venture to make to the Government and to the House the point which I made years ago when I was shadow spokesman for the Home Office in another place. We were then talking about the Children Bill (as it then was) which afterwards became the Children and Young Persons Act 1969, and my point was that it was all very well but it was no good putting forward such high-minded stuff if one had not got available the trained personnel and also the bricks and mortar necessary to carry the policy into effect. I warned them then that their Act was going to break down on this, in spite of the high-minded attitude of the then Home Secretary, Mr. Callaghan, and in fact it did so. I do not think it is the sensible course to raise people's hopes with a genuine idealism and then find that, when you come down to the brass tacks of whether you have the bricks and mortar and whether you have the trained personnel, you cannot carry out your promises.
Having said that, I repeat my thanks to the noble Lord and would say again that there is no element of Party politics to be made out of this discussion and that I recognise the good intentions of the Government and accept the general philosophy underlying the Bill.
§ 7.2 p.m.
§ Lord WIGODER
My Lords, I have been asked by the noble and learned Lord, Lord Gardiner, to present his apologies to your Lordships for the fact that another duty has called him away and has thereby deprived your Lordships' House of the opportunity to listen to what I know would have been con- 516 structive and humane comments upon this Bill.
I have to differ from the noble and learned Lord, Lord Hailsham of Saint Marylebone, in that he has indicated that this Bill may do some harm. I suggest that it would do neither harm nor good; it is a singularly ineffective measure. It contributes very little to the solution of a problem which by its very nature is not amenable to legislation. It simply re-enacts tests and criteria which have been adopted by the Judiciary, certainly ever since I was called to the Bar, a comparatively long time ago; it simply reiterates what is already the standard practice in almost every court in the land.
It creates one new advance: it creates the offence of absconding while on bail, which I accept is an improvement upon the present rather artificial position of threatening to estreat a recognisance of some vast sum of money which everyone knows the defendant has not got and indeed never possessed at the time when he first entered into it. But, in substance, this Bill will add minimally, if at all, to the number of people who are released on bail. There are two sets of figures that give concern. The first is that in a year, as we know, some 30,000 people are remanded in custody and eventually not sent to prison after their conviction. The Working Party pointed out, quite rightly, that that is a figure to be looked at somewhat critically because the fact that people have been remanded in custody is often a substantial factor in their not being sent to prison when they are sentenced. Indeed, many members of the Bar and many solicitors frequently advise their clients not to apply for bail when they are awaiting trial, because it might well turn out to be the most important factor in mitigation—particularly when it is known that there is to be a plea of guilty—to be able to say that one's client has been in prison and has had a "taste of custody", which I think is the general expression which is commonly used on these occasions.
I would add, too, that the other argument in relation to the number of people who are remanded in custody but where non-custodial sentences are eventually passed I find unimpressive; that is, the argument that on principle it is wrong to remand somebody in custody if it is 517 unlikely that a prison sentence will in due course be imposed. It seems to me that they are wholly different considerations. For example, if it is established that a defendant will attack and injure witnesses in his case, that is a perfectly proper reason for remanding him in custody even though it is in the highest degree unlikely that he will be sent to prison as a result of his trial.
There has been a further proposal put abroad in the Press recently that people who have been convicted by a jury and appeal should be entitled to bail on appeal on the same criteria as those already set out in this Bill. I see the noble and learned Lord, Lord Hailsham, shaking his head. May I say at once that this would obviously cause the courts of this country to grind to a halt, and I hope that no further consideration will be given to that suggestion.
The other figure that is mentioned is the one that is of course perturbing; that is, that some 2,000 people a year are remanded in custody and then acquitted of their charge. As a matter of common sense it would he wrong to talk about "2,000 innocent people"; but they are 2,000 people whose cases had in due course not been proved by the prosecution. This is a figure which clearly causes anxiety and it is a problem which this Bill attempts to tackle. It tackles it simply by setting out that bail should be granted unless the provisions in Schedule 1 come into effect.
The crux of the Bill is in the Schedules, as it so often is these days with the customary standards of Parliamentary draftsmanship. There is nothing new in this. Certainly, for so long as I can remember, there is a presumption that bail will be granted unless certain matters are shown to the contrary. The matters that are shown to the contrary have always been the ones that are set out in the Schedule. The first one is that it is probable that the accused would fail to surrender to custody. I think that the most recent set of figures on this shows that something like 7 per cent. of those who are granted bail fail to surrender to their trial. This is a matter of some gravity, not only because it interferes with the general administration of justice but because, particularly where there are joint trials and it is necessary to present a complete picture, the absence of a defendant 518 can result in a serious miscarriage of justice so far as other defendants are concerned. It is certainly not unknown for defendants if they are on bail to arrange among themselves that one or other should fail to surrender to the bail in order that in due course his colleagues might have a better chance of success at their trial.
The fact that a person might fail to surrender to custody is clearly a good reason for not granting bail. As I have always understood it, this is the area in which the considerations mentioned by the noble and learned Lord, Lord Hailsham, arise. 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 tics, and so forth—I suggest are really all matters which primarily come under the heading, "Will the defendant fail to surrender at his trial?".
My Lords, the second ground given in the Schedule, that it is probable that the defendant will commit an offence while on bail, again is something that perhaps ought not to be looked at too lightly. As I understand from Sir Robert Marks' latest figures for the Metropolitan area, on an average day some seven people are arrested and charged with robbery who are already on bail for the offence of robbery. Perhaps the victims of the seven people on that average day might justifiably query whether bail ought to have been granted to their assailants. The third ground that is given is, in my judgment at least, not perhaps quite as realistic as the other two; that is, that it is probable that the accused will interfere with witnesses. I say that because my own experience certainly is that the sort of case in which interference with witnesses is likely is really a case of organised crime, where gangs of people are concerned and where in consequence 519 it is as easy for a person in custody to arrange for the interference of witnesses as it is if a person is on bail.
All this merely raises, perhaps, the crucial problem mentioned by the noble Lord, Lord Harris of Greenwich, in the course of introducing the Bill: the crucial problem as to how courts can determine these matters. Clearly, the courts must have full information, and in so far as the Bill ensures there will be full information, I would welcome it. But equally clearly, as was mentioned by the noble Lord, Lord Harris of Greenwich, the decision whether to grant bail is perhaps the most difficult decision that any tribunal has to take—and I speak as someone who, at times sitting as a recorder, has to make that decision. It is usually possible to weigh up evidence and decide whether someone has done something in the past. It is usually possible to assess what might be the appropriate sentence in a particular case. But the decision whether to grant bail is in fact nothing more than a well-informed guess as to a person's future conduct if he is released from custody.
All that a court can do in those circumstances, having obtained the fullest available practical information on background and community ties, record, and so on, is to rely on what a police officer says. A police officer will say that his information is that a defendant will not stand his trial; he will say his information is that there is a boat on the South Coast, that witnesses are in grave danger, and so on. But whatever the police officer says is unlikely to be susceptible to detailed cross-examination. Inevitably the police officer's sources of information are confidential, and much depends, therefore, on the instinct of the court in dealing with the matter, and on the reliance they can place on the information given by the police officer.
My Lords, I would add, not in any general criticism of the police, that this is an area in which there are temptations. There are temptations, sometimes for police officers, not to oppose bail when they should oppose bail. Equally, there are temptations, of which I think the courts are much aware, where a police officer, for one reason or another, has a grievance against a particular defendant—that defendant may have been awk- 520 ward or difficult; or it may be a particularly unpleasant kind of trial. It is all too easy for an officer to say that he is entirely satisfied that the defendant will not surrender to his trial, although he can give no reasons and when in fact there may not be any information to that effect. Therefore, all a court can do in dealing with a bail application is to use its experience and instinct, and to decide on the guidelines that the Bill lays down—and which have been laid down for many years now—whether bail can be granted.
May I end my speech by suggesting certain practical steps that could be taken to deal with the serious problem of bail. First, it is obviously important—particularly in view of what I have just said—that the courts should feel able to rely upon the integrity of the police officers who are giving information to the courts. I welcome the very dramatic progress made in that respect by the present Commissioner of the Metropolitan Police in enabling the courts to feel that they can, with confidence in the great majority of cases, rely on what is being said to them.
Secondly, it is important that if a person is remanded in custody awaiting trial, it should be for as short a time as possible. The noble and learned Lord, Lord Hailsham of Saint Marylebone, when on the Woolsack, did much to ensure that trials came on more speedily than they had done in the past. But there is still, I believe—and I do not want to explore this now because it is a rather different topic—a vast area of improvement that could be made, particularly where the committal procedures which have evolved since 1967, the Section 1 procedures, are so operated as to mean that an enormous waste of time takes place at the trial, although much time is saved at the magistrates' court. This is a separate area, and clearly not one that it would be profitable to pursue at this moment.
My Lords, the third aspect of the matter which I would mention is this. It cannot be right that people who have not been tried should be remanded in custody to places where the conditions are as unpleasant as in Brixton prison.
§ Lord WIGODER
My Lords, I appreciate that at this particular moment the economy of the nation is not such that pleas for expenditure on providing new bail institutions are likely to be received with acclamation. I know, too, that there never have been any votes in penal reform, and that even when money is available the plea for new institutions of that kind is one that inevitably goes to the end of the list. But I would hope that something could be done in the reasonably near future, so that where people are presumed to be innocent and remanded in custody, it can be done in conditions which are reasonably tolerable and civilised. I would venture to think that by taking practical steps along these lines we can reduce the present hardships of the bail situation, rather than on the lines of a Bill which I suspect will turn out to be singularly ineffective.
§ 7.17 p.m.
§ Lord FOOT
My Lords, as the list of speakers testifies, it was not my intention to participate in this debate. I do so only because the noble and learned Lord, Lord Gardiner, has been called away. He would, I think, have said all the things that I want to say but, of course, he would have said them much better than I. I am singularly unprepared to take part in this debate, but I think it would be a grave detriment if this important Bill, as many of us regard it, and what some of us regard as this radical and very necessary reform, were to go through this House without having received support from anybody except the Minister who is presenting it.
The noble and learned Lord, Lord Hailsham of Saint Marylebone, said that he thought that on balance there were more bad than good points to it. The noble Lord, Lord Wigoder, went even further than that, and suggested that the whole thing was really unnecessary, and avoids the real issues. Both the noble and learned Lord, Lord Hailsham, and the noble, and, perhaps I can also call him, learned Lord, Lord Wigoder—we certainly called him that in another place—both live in the judicial stratosphere. I have been engaged in the practice of the law for almost the same length of time as the noble and learned Lord, Lord Hailsham. If I remember rightly, he was about two years my senior. I have been engaged in the practice of the law as a 522 solicitor, in the main in the magistrates' courts. I can only give testimony as to the way in which bail applications have been dealt with in the courts in my 40 years' experience, and it differs considerably, evidently, from the experience of the noble Lord, Lord Wigoder. The noble Lord said at the beginning that this Bill does not really add anything to what has been the ordinary judicial process for many years past.
Those who have practised as a solicitor, as I did for 40 years, appearing perhaps four or five times a day in the magistrates' courts—and I have made, I suppose, tens of thousands of applications for bail, both before the 1967 Act and since the 1967 Act—know the terribly frustrating experience that all of us who practice in the magistrates' courts have gone through over and over again. When the police get up and oppose bail and ask for a remand in custody, it is extremely difficult for the magistrates to refuse that application for this reason: the magistrates are dealing with police officers with whom they deal every week, perhaps every day of the week. If one of those police officers, in whom they have very natural confidence, gets up and says, "I have reason to think that this man will abscond"; or, "I have reason to think that he will interfere with witnesses"; or "I have reason to think that he will do this, that or the other", it is very difficult for the magistrates in those circumstances to allow the application for bail without appearing to reflect upon the judgment of those police officers. Therefore, their task is extremely difficult. What the Bill does, and all it does, the general principle of the Bill, is to bring it home to magistrates that the burden of satisfying them that bail should not be granted rests upon those who assert it; and other things being equal, unless the exemptions apply, then, in the ordinary way, bail should be granted. To my mind, that can do no harm and it can do a great deal of good.
I come now, if I may, to the criticisms of the noble and learned Lord, Lord Hailsham. One of them which, if I may say so, obviously has great substance—it is supported by judicial authority whose name he did not give us, supported by the Criminal Bar Association, and supported, most important of all, by Lord Hailsham himself—is that the words of Schedule 1 go too far: that for the word "probable" 523 you ought to substitute the word "possible"; then, further down, you ought to bring in an exemption relating to the seriousness of the offence. That is a point which is certainly arguable, and, it is a point from which I do not necessarily at this stage dissent. But even if that was done, even if that was achieved, and this amendment were made in Committee, it would still present clearly to a bench of magistrates that the burden of satisfying them that bail should be refused rests upon those who assert it, and that it is not for the accused person to satisfy them positively that he should be granted bail. That is what the Bill achieves.
Turning to the other criticisms of the noble and learned Lord, Lord Hailsham, I do not want to do him any injustice, because he himself said that he thought these were all matters that could be cured in Committee. If I may emphasise that, I entirely agree; I thought all his points of criticism were matters which could be dealt with and, if they are wrong, could be cured in Committee. The first I have already referred to: that the words in Schedule 1 put the whole thing too high. That can obviously easily be cured in Committee. The second is the insertion of a consideration of the seriousness of the offence. If people want it, that can go into Schedule 1. Then the noble and learned Lord said that the Bill does not include some of the factors emphasised by the Working Party; the strength of the case against the person concerned when you have a committal for trial; the defendant's antecedents; the likely sentence he would get if eventually convicted, and the question of the defendant's community ties. As the noble and learned Lord himself agreed, these are Committee points, matters which can all be dealt with at a later stage.
The noble Lord very rightly drew attention to the fact—and with this I entirely agree—that if you try to put into the Bill something that will require that courts, when considering hail applications, must get proper information about the accused, you may well be setting up an ideal which you cannot achieve because you do not have the machinery or the people to provide the information. I am entirely with the noble Lord about that, but it is not, to my mind, a criticism of the Bill; it is a general observation, 524 a useful observation upon the whole problem of how we should manage the bail system.
Therefore, I believe that the Bill, in principle, is a very useful guide to all courts, a very clear demonstration to them; and, after all, it embodies the basic recommendations of the Working Party which was set up under the previous Administration. The Government have adopted all the main proposals of that Working Party. They obviously regarded this matter as a matter of great concern, and so do I. I wish the Bill well, although there may be some points which I shall want to see amended in Committee when we get to that stage.
§ 7.27 p.m.
§ Lord HARRIS of GREENWICH
My Lords, I am grateful to those noble Lords who have participated in this debate and for the general welcome, perhaps more qualified in the case of some noble Lords than others, that has been given to the broad intentions of the Bill. I think all sides of the House recognise the real difficulty—the noble and learned Lord, Lord Hailsham, touched on this point—faced by the courts when they have a decision to make as to whether or not a person is to receive bail. The noble Lord, Lord Wigoder, was quite right when he made the point that it is obviously extremely difficult for the court at that stage to be clear as to whether the man is subsequently likely to be acquitted.
I accept that there are some doubts which have been raised by the noble and learned Lord, Lord Hailsham, and by the noble Lord, Lord Wigoder, but I am bound to say I find myself in almost total agreement with the speech of the noble Lord, Lord Foot, not altogether to his surprise, because I think he went to the heart of the matter. I think it is going altogether too far to say—as the noble Lord, Lord Wigoder, did—that this is no doubt a well-intentioned measure but it will have no significant effect. I think Lord Foot's answer to that is that it will have that effect because of the question of onus. The person will receive bail "unless": that, with great respect to the noble Lord, is in itself an important change in the law, as is the abolition of the old recognisance system which had become growingly ineffectual; obviously 525 a man who believes that he is likely to go to prison is not particularly worried about forfeiting his own recognisance, because he knows nobody will succeed in recovering the recognisance from him. So that in itself is a significant change in the law. I must come back to this point. These recommendations have been made by a Working Party which consisted of representatives of the Association of Chief Police Officers and of the Magistrates Association, by a widely representative Committee of those people with practical experience in dealing with matters of this sort. I shall come in a moment to the point raised by the noble and learned Lord, Lord Hailsham, to the effect that we have in some respects gone rather further than the Working Party recommended. But I must take the point quite clearly that the Bill stems from the recommendations of this extremely broadly-based Committee.
May I deal first with the points made by the noble and learned Lord, Lord Hailsham of Saint Marylebone. The noble and learned Lord welcomed the general philosophy of the Bill. He rightly pointed out that if the Bill worked it would, hopefully, have an effect on the size of the prison population, which is true, and that it would deal to some extent (again, if it worked) with this serious problem of deprivation of liberty of people who might subsequently be acquitted. He welcomed the abolition of the own recognisance system, and I have dealt with that point, and also the creation of the new offence of absconding while on bail. I think that the noble and learned Lord, Lord Wigoder, joined him in that. He asked a question as to whether the Bill dealt with only the pre-conviction situation. Yes, the noble and learned Lord is right, it does. There is no intention of going to the extreme position which the noble and learned Lord, Lord Wigoder, touched on, and say that it would have to apply in all cases where people were, for instance, going to appeal because, as he rightly said, that would create something of an absurdity.
The noble and learned Lord raised two particular questions. First, the language of Schedule 1 to the Bill. Obviously, we shall look at the point with care, as at the other one as well, between now and Committee or Report stage. I am not sure that I would altogether agree 526 with him that we have gone further, so far as this first point is concerned, than the recommendation of the Working Party. For instance, I do not think that the language we use in fact removes the courts' discretion. It simply indicates the way in which they should exercise it. I think that there is a clear distinction.
The second point which the noble and learned Lord raised concerned the question of whether the seriousness of the offence should not in itself be a reason why a person should be denied bail. Again we shall look at this point between now and the later stages of the Bill. As the Working Party indicated in the paragraph which the noble and learned Lord read out, to some degree this is met by condition (a), the failure to surrender to custody. Clearly, to take an extreme example—I am going to use my language rather carefully and not incur the displeasure of the noble and learned Lord, as did his judicial friend—if an alleged IRA terrorist were to be arrested and charged, I do not think that the language of this Bill would mean that there would have to be a lengthy discussion as to whether he was going to receive bail or not, because clearly he would be unlikely to surrender to custody at his subsequent trial, and that is perfectly adequately dealt with in the Bill. Nevertheless, the noble and learned Lord has rightly said that he always approaches matters of this sort in a wholly non-partisan way, as he does, and we shall look seriously at the points which he has raised.
The noble and learned Lord also touched on the resource implications of these proposals and referred to the Children and Young Persons Act 1969. With respect to him, there are indeed some resource implications but these largely apply in the non-statutory areas of our proposals. So far as this Bill is concerned there are not immediate resource implications. However, on the point I raised earlier, the non-statutory elements, the point raised in our Circular of last October concerning bail verification schemes, there clearly are resource implications. So far as these are concerned, this is a matter for probation and aftercare committees. We have made it quite clear that there can be no additional resources made available for bail verification schemes. Nevertheless, we have said 527 to all probation and after-care committees that in the current situation it is right that they should constantly, as should other public services, re-examine their own priorities so far as the day-to-day work which they are discharging is concerned to see whether it is possible to introduce schemes of this sort without major staff implications following.
All I would say to the noble and learned Lord on this is that in London a great deal of this work is done by volunteers. It is a great tribute to the Inner London Probation Service that they have succeeded in creating this scheme which, at the moment, is supervised by only one member of the Probation Service supported by some ancillary workers, but the remainder of the people doing day-to-day work of verifying the information given by criminal defendants is done by volunteers. All one would say is that it would be quite wrong for the Government to apply great pressure on every probation and after-care committee to bring this in and not provide resources. It is a matter of local option, of local choice, as to whether, having re-examined their priorities, it is possible to introduce schemes of this sort. In London they have done so with, in my view, substantial success, and so far with fairly limited resource implications.
Before I leave this point may I deal with bail hostels. This again would have resource implications. There is a rolling programme of the provision of probation hostels, which was begun by the Government of which the noble and learned Lord was a Member and which continues at the present time. We have in fact now switched the emphasis towards bail hostels of which, I may say, there are still tragically few, and not all that number of additional hostels projected. Nevertheless, there is some movement in this area. In addition, we have asked probation and after-care committees to consider whether bail hostel places can, in appropriate cases, be made available in probation hostels so that they would serve a dual purpose of providing probation places and bail places.
It is true that some committees are reluctant to do this because there obviously can be difficulties created. Nevertheless, others are doing so. Indeed, 528 I was in North Wales on Friday where the local probation and after-care committee will, within, I think, the next 12 months, have a joint probation and bail hostel in existence. Undoubtedly there are not going to be enormous resources for widespread extension of bail hostels. However, we are doing what we can with the very limited resources available to us.
The noble and learned Lord, Lord Wigoder—I keep on referring to the noble and learned Lord, Lord Wigoder; I am sure that he will not object to the description—made the point earlier, which I have done my best to answer; namely, that this problem is not really amenable to legislation, which was a phrase which he used at the beginning of his speech. I think, on reflection, he would hesitate before he used the term going quite as wide as that. After all, as I endeavoured to point out in my speech, the 1967 Act, with its imperfections so far as bail is concerned, has had a fairly significant effect. It has reduced the percentage of remands in custody from 33.9 per cent. in 1967 to 15 per cent. in 1974. Therefore, it has had some effect. When this Bill, as I hope it will be, is on the Statute Book, I hope that this too will further reduce that proportion.
The noble Lord, Lord Wigoder, went to the heart of the matter when he referred to conditions at Brixton. I too have been to Brixton in the last 12 months, and it is the most serious matter that hundreds of our fellow citizens are kept in overcrowded conditions of this sort. It is quite clear that in the present economic situation it is impossible to contemplate a large prison building programme. There is no point in arguing that there should be severe restrictions on public expenditure—I say this in no criticism of the noble Lord, as he will recognise—while at the same time advocating a large prison building programme. It is obvious that there is no immediate prospect of biting into this very serious problem unless we can act to deal with unnecessary remands in custody.
I hope that I have said enough to indicate that the Government will look carefully at the points which have been made this afternoon. The Bill is a quite significant reform in our system of criminal procedure and in the general development of our penal system. Some 529 criticisms have been put forward and I assure the House that they will be examined with care by the Government between now and the later stages of the Bill.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.