§ 3.25 p.m.
§ Read 3a, with the Amendments.
§ Clause 4 [General right to bail of accused person]:
§ Lord GARDINER moved Amendment No. 1:
§ Page 5, line 5, at end insert (", except that no person shall be remanded in custody for the purpose of obtaining a medical or social enquiry report about him unless the Court is satisfied that he should be so remanded for his own protection or for his own welfare.")
§ The noble and learned Lord said: My Lords, I do not suppose that this Amendment is in the right Part of the Bill, and I do not expect that it is properly worded. I raise it in the main for discussion. Of course, if my noble friend Lord Harris of Greenwich will accept it, I shall not complain, but as at present advised I think it unlikely that I shall press it to a Division. I have put down this Amendment because at previous stages of the Bill the noble and learned Lord, Lord Hailsham of Saint Marylebone—quite rightly, if I may respectfully say so—courteously intervened from time to time when someone spoke about a matter which was not on the Order Paper or the Marshalled List. The noble and learned Lord was quite right; we must all keep in order, particularly perhaps very old ex-Lord Chancellors, and so this time I have put this matter down for consideration.629
§ At the Committee stage I supported two Amendments of the noble Lord, Lord Foot. One of those Amendments was to provide that nobody should be sent to prison by being refused bail if the offence with which he was charged was not an imprisonable offence, and my noble friend Lord Harris of Greenwich was kind enough to say that he would consider that. Secondly, there was a provision virtually of this kind relating to those sent to prison for a medical report. At a time when our prisons are overcrowded this is a substantial question, because if, as I think, the noble Lord, Lord Foot, was correct with his figures, almost 24,000 men and women are sent to prison for a week simply in order to get a medical report, in conditions which my noble friend Lord Harris of Greenwich described as a disgrace to any civilised country.
I referred to an article which Mrs. Dell had written in the New Law Journal. She had reminded us of a matter which I am not sure even now the Home Office realise, because it has never referred to it; namely, that by Section 18 of the Criminal Justice Act 1967 provision was made that in certain cases remands must be on bail, and where the remand is for a medical report these provisions do not apply if, but only if, it appears to the court that it would be impracticable to obtain such a report without remanding the defendant in custody. This Bill repeals this section. Therefore this Bill, as far as it goes so far in this field, makes matters worse, not better. Mrs. Dell concluded her article by saying:
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.
On that Amendment my noble friend Lord Harris of Greenwich said, as reported at column 1535 of the Official Report:
… 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.
Therefore, I anticipated that my noble friend Lord Harris of Greenwich would put down an Amendment, perhaps at the Report stage of the Bill, or would, at least, let one know what had happened. Nothing at all was said at the Report stage. We are now at Third Reading and still there is no Amendment. I heard nothing about the matter, but the noble Lord, Lord Foot, received a letter from my noble friend Lord Harris of Greenwich, referring to this point. I understand that my noble friend Lord Harris of Greenwich will not mind my referring to what he said, but the House has never been taken into the confidence of the Government at all as to what is their view on this subject. My noble friend Lord Harris of Greenwich said in his letter to the noble Lord, Lord Foot:
The view we take as regards persons remanded for inquiries before sentence is that we might embody in the Bill the substance of what the Working Party on Bail Procedures in Magistrates' Courts intended, i.e. that such persons should be remanded on bail unless a one of the considerations in Schedule 1 of the Bill applies or (b) the court has in mind to pass a custodial sentence subject to the contents of the report which it has called for or (c) the court is of opinion that the defendant may be mentally disordered and in need of in-patient treatment at a hospital.
§ The first question I would ask my noble friend is: as there is nothing on the Marshalled List in the name of the Government today, does he propose to do this in another place? Presumably it is too late for here. If so, then I would submit that, as to (a)—that "one of the considerations in Schedule 1 to the Bill applies"—that, of course, is absolutely right. Schedule 1 comprises the criteria which will now be established for granting or refusing bail, and that is quite right. As to (b)—that "the court has in mind to pass a custodial sentence subject to the contents of the report which it has called for"—I should strongly object to that. This would make it possible for any court to remand anybody in custody in any case; their decision would be quite unchallengeable, because it depends entirely on what is in the mind of the court. Obviously, the person himself cannot prove what is in the mind of the court, and this could therefore be used to justify every or any remand in custody for inquiries, which would negate the value of including these remands within the provisions of Clause 4. If the court thinks that the offender, anticipating a jail sentence, may be tempted to abscond, they can take that 631 into account, of course; that is Schedule 1. His state of mind they can take into account, but only on the question whether it is not an unacceptable risk to give him bail on Schedule 1 grounds.
My noble friend has referred to the Working Party's report, and in paragraph 148, on which this is apparently based, there is a sentence I cannot understand at all. They say:
It need not be unreasonable to remand in custody, even though there is little likelihood of the defendant absconding or committing further offences".
§ They give no argument to support that at all. It is a bald statement as to what they think is not unreasonable; they produce no argument. Of course research has shown that in a high proportion of these cases they have been out on bail during the case in any event. I should submit that only Schedule 1 ought to apply, and that this (b) will give the magistrates an opportunity to remand all in custody every time without anybody ever being able to question it, because it depends entirely on their state of mind on a point which is irrelevant except for the question whether or not he is likely to abscond, which is Schedule 1.
Then, (c) is that
the court is of opinion that the defendant may be mentally disordered and in need of in-patient treatment at a hospital".
§ This seems to be based on a misconception of the court's role in a medical remand. In such cases the court has two functions. The first is to decide whether or not to remand the tried offender for medical reports. As the Butler Committee pointed out, the social inquiry report will probably indicate whether or not there is a need for medical examination. Once it has decided on a remand for medical inquiries, the second decision for the court—quite different—is whether it should be on bail or in custody. This, in my submission, should be determined by the court in the ordinary way according to the criteria laid down in Schedule 1.
§ I do not wish to take up further time by arguing this point. Of course, the Magistrates Courts Act specifically makes provision for offenders to be remanded on bail to a hospital as in-patients. I therefore hope that the Government will reconsider the contents of the letter, or even that my noble friend Lord Harris may have 632 better news for us today. My Lords, I beg to move.
§ 3.34 p.m.
§ Lord FOOT
My Lords, I wonder whether I could add a few words in support of the Amendment which has been moved by the noble and learned Lord, because he has, as it were, taken up the cudgels which I laid down on an earlier occasion. I should like to follow him, if I may, in making one or two comments upon the way in which this Bill has gone through your Lordships' House, because I cannot help thinking that it has been less than satisfactory. I should like to say at once to the noble Lord, Lord Harris, that this is in no sense a personal criticism of himself; but I should like to tell the House just what has happened, because I think a matter of some principle is involved here, in that this House has not had the full opportunity it ought to have had to discuss the very important terms of this Bill. I think I am entitled to take that line because from the very beginning I have been a wholehearted supporter of the general principles of this Bill. I spoke in favour of it on Second Reading. It seemed to me that the general approach of the Bill—based, of course, upon the report of the Working Party—was logical, sensible and designed to be effective for the purpose which we all have in mind; that is, to try to prevent people being sent to prison on remand if it is possible to leave them in society without danger to the community. I am wholeheartedly in support of that principle, and I think that, so far as accused persons are concerned—not convicted persons, but so far as accused persons are concerned—as originally drawn the Bill was very well framed.
For the benefit of those Members of the House who may not have been able to follow these rather intricate legal points may I explain in two sentences, perhaps, what this Bill accomplishes? First of all, for the first time in English law it lays down the principle that where a person is brought before a court and the question arises as to what is to be done with him on an adjournment or a remand, there shall be a presumption in favour of bail unless certain criteria are fulfilled; and the criteria that you have to look at, which are the exceptional cases, are contained in Schedule 1 to the 633 Bill. They are, of course, if the court is satisfied, first, that there is an unacceptable risk that the defendant may abscond; secondly, that he might commit other offences in the meanwhile; and, thirdly, that he may interfere with witnesses. Then, the fourth criterion, which appears further down the Schedule, says that the court need not remand him on bail if they are satisfied that to remand him in custody would be for his own protection and his own welfare. That was the second basic principle of the Bill: that there should be a presumption unless it was dislodged by the exceptions contained in Schedule 1. The third major principle of the Bill is that if the magistrates or the Crown Court refused bail, then they must give their reasons for doing so. All those things seem to be logical, sensible and a substantial improvement upon the situation before.
At the Committee stage I moved four Amendments, in substance. They were designed to try to deal with four particular situations. The first Amendment which I moved was one by which I hoped that we should not make the mistake, as I think we are, of making absconding or failing to surrender to bail a criminal offence. That, of course, is introduced by the Bill in place of the personal recognisances, which have now been abandoned. That was the first thing I sought to do. The second thing I sought to do was what the noble and learned Lord is now trying to do again, and that is to make the presumption in favour of bail apply to persons who are remanded after conviction or after a finding of guilt in order that some report or inquiry may be made about them before a decision is made in their case.
The third thing I sought to do was to provide that, if anybody was at risk of being remanded in custody, then before the magistrates or the Crown Court remanded him in custody, and if he came within the financial criteria, he ought to be given the benefit of legal aid to enable him to make his representations on the matter of bail. The fourth thing I was trying to do was to provide that there should not be a remand in custody of anybody on a substantive offence if the substantive offence is non-imprisonable. Those are the four things I tried to do. The noble Lord, Lord Harris, rejected No. 1, the proposal that absconding should 634 not be a criminal offence. That was the end of that argument. But on the other three, the noble Lord was good enough to say that he thought that there was something in what I had argued and he promised to take the matters away and to have a look at them again.
In accordance with that undertaking, he wrote to me during the Easter Recess—and this is the letter to which the noble and learned Lord has just referred—and he told me what the Government had in mind upon these three matters about which he had undertaken to think again. This letter was written on 14th April. At the end of it, he said:These are our present intentions"—and I will refer back to that in a minute.However, because of the Easter Recess intervening we shall not be able to have Amendments drafted and circulated until Monday, 26th April.That was the day before the Report stage on the 27th.Moreover, we cannot be sure until Parliamentary Counsel has had time to go into the matter that he will be able to draft all the Amendments in the time available before Report. I therefore thought it right to let you know now what our intentions are so that at least you should not be taken by surprise or puzzled by the apparent delay in publication of the Amendments.That was courteous of the noble Lord. But then we had the Easter Recess. I received that letter, and what happened? What happened was that when we got to the Report stage, only one Amendment had been put down by the noble Lord, Lord Harris, which related in any way to my proposals. This Amendment related to a very narrow issue about legal aid for people who had been convicted and remanded and at Report I am afraid that I expressed views that, however good the intentions of the Government were, the way in which they had tried to do it would prove entirely unworkable. The noble Lord, Lord Harris, said that he thought there was some substance in the criticisms that I then made, but he asked, nevertheless, that the House should pass his Amendment as it stood. The noble and learned Lord, Lord Hailsham, asked whether it would not be better, if he thought it wrong, to take the Amendment away. Lord Harris replied that he thought it better that the Amendment be passed but that he would look at it again to see whether there was any substance in the 635 charge that it was unworkable. That was the situation on Report.
My Lords, here we are today on Third Reading of the Bill and nothing more has been produced in reply to the criticisms about legal aid that I made at the Report stage, and nothing has been produced by the Government upon the various matters to which the noble Lord, Lord Harris, referred in his letter to me as to what the Government were of a mind to do. The result is that this Bill is going to leave this House today without the House having had any opportunity of debating what the Government are intending to do by way of its amendment. Not only is it going to another place without any debate about what the Government intentions are but, except for the noble and learned Lord, Lord Gardiner, I think I am the only person who knows what the Government have in mind.
This seems to me to be a very unsatisfactory procedure because I should have thought that for the discussion of Bills of this kind, non-Party Bills with no Party connotation, this House is the ideal forum. We have the time, which the House of Commons so often has not got; we have a wealth of legal talent and experience. Surely this is the very place where these matters ought to be debated fully and openly, as they often cannot be in the House of Commons. Therefore, I hope I am not complaining unreasonably when I say that I am very disappointed that we have not had the opportunity of discussing these matters in the full detail in which they should have been discussed; because the noble Lord, Lord Harris, when he took these matters back, was in a sense conceding that there was some virtue in the criticism that I made.
So far as we are concerned the Bill is going to disappear this afternoon, and we are going to have no further say in the matter. Of the Amendments that I proposed, by far the most important was the one which the noble and learned Lord, Lord Gardiner, has now resurrected. I agree with him that he has not got it right. It is not in the right place. I believe that the Amendment I moved at an earlier stage was probably a little better; but that is neither here nor there. This Amendment is the most important criticism of the general purposes of the Bill. The noble 636 and learned Lord, Lord Gardiner, referred just now to some figures I quoted at an earlier stage about the extent and size of the problem. I was quoting not from any partisan publication but from the report of the Working Party itself. They said as he said: that in whatever year it was that they were considering, no fewer than 24,000 people were remanded for reports or inquiries; and, of those, about 12,500 people were remanded for medical reports. This is an extraordinary situation.
I now speak, if I may, to the laymen in the House. Is it not an extraordinary thing that no fewer than 24,000 people, many of them unconvicted but some of them having been convicted, should suffer a taste of imprisonment and be put away, not for a week but very often for three weeks—for the courts have power to remand up to three weeks in custody—when many of them will never be sent to prison afterwards? By sending a person to prison for three weeks on remand in custody, you can, as the noble and learned Lord, Lord Gardiner, pointed out on an earlier occasion, destroy a man's life. It is a dreadful situation that this should be the case, but that is the size and gravity of the problem.
May I turn to what the Government are proposing to do on this particular issue? The noble and learned Lord, Lord Gardiner, has already quoted the paragraph in which Lord Harris told me what the Government intentions are, but I will read it again because I think it requires a little taking in. I should like to think that this is not an argument between lawyers but an argument of great public importance. What the noble Lord said to me in the letter was:The view that we take as regards persons remanded for inquiries before sentence is that we might embody in the Bill the substance of what the Working Party on Bail Procedures in Magistrates' Courts intended, i.e., that such persons should be remanded on bail unless (a) one of the considerations in Schedule 1 of the Bill applies.
That is to say, the court is satisfied that there is an unacceptable risk that the man may abscond, or he might commit other offences, interfere with witnesses, or he ought to be remanded for his own protection. The Government say they might be prepared to consider creating a presumption in favour of bail in those circumstances. The Government then try to 637 add two further criteria. The second criterion which they want to add is that the court has it in mind to pass a custodial sentence subject to the contents of the report which it has called for. Then (c):That the court is of the opinion that the defendant may be mentally disordered and in need of in-patient treatment at a hospital".As the noble and learned Lord, Lord Gardiner, said, if we are to consider the effect of (b)—that is to say, if the court is thinking of passing a custodial sentence—there is no presumption in favour of bail when it remands the man for a report. The insertion of that new criterion is first of all entirely unnecessary because it is impossible not to believe that if, for example, the court has it in mind to impose a severe sentence upon somebody, when the court comes to apply its mind to the criterion in Schedule 1—that is, "Is this man likely to abscond if we let him out on bail? "if he is liable to a fairly heavy penalty and it is a serious offence, obviously, under the terms of Schedule 1, the court is going to keep him in custody. It is absolutely unnecessary to introduce this extra criterion to achieve the object which everybody has in mind.
Also, to put in a clause of this kind is positively inviting the courts to remand people in custody, because what you are saying to the court when you add on this additional criterion to those in Schedule 1 is in effect: "If you are thinking of sending this man to prison after you get your report, do not bother about asking yourself whether he is going to abscond. You need not bother about that, or whether he is going to commit other offences. Forget about that. If you are going to sentence him to a custodial sentence, you can deny him bail perfectly properly without any further ado".
The third criticism was one to which again the noble and learned Lord referred: if the magistrates decided to refuse a man bail and remand him in custody for no better reason than they had it in mind to sentence him to a custodial sentence eventually, then that decision cannot in any way be challenged. There is no way in which the defendant can complain to some other court that he has been improperly denied bail. Of course he can complain if the magistrates turn him down because they say that they think he is going to abscond. Then of course he can go to the High Court or to the Crown 638 Court, and even appeal against that decision. Then the court applies its mind as to what it thinks the possibilities are. If the court of first instance, which has refused him bail, has done so simply on the ground, "We are thinking of sentencing him to a custodial sentence", there is no way of appealing against that decision.
The last criteria, which is (c), is the second additional criterion which the Government have it in mind to add on. It is:That the court is of the opinion that the defendant may be mentally disordered and in need of in-patient treatment at a hospital".Is not the real effect of that to say to the court dealing with the bail application, "Even if you are satisfied that this man is not going to abscond, even if you are satisfied this man is not going to commit any other offences, even if you are satisfied that he is not going to interfere with witnesses, even if you are satisfied that he will turn up in due course and even if you are not thinking of imposing a custodial sentence, nevertheless "—in the words to which I have referred—" if you think he is mentally disordered or if you think he is in need of in-patient treatment, you are perfectly at liberty to send him to prison". Is it necessary to do anything more than to enunciate the proposition to show how indefensible that situation is? It is a positive invitation to the courts to forget about the question as to whether he will answer to his bail: "Forget about other considerations; if you think he is a bit barmy, send him to prison".
That is all the more intolerable because under our present procedures, under Section 26 of the Magistrates' Courts Act, the court can, if they wish, bail a man for in-patient treatment in a hospital. But what the addition of this criterion does is to invite the court to do to the man what might be the worst thing you can do in the psychiatric case: that is, confine him in prison for three weeks. All the other criticisms we made about criteria (b) apply to (c). It is absolutely unnecessary because if the court have somebody before them whom they think is a bit odd, who may be slightly deranged, that is one of the factors which they can take into account when considering whether he is going to abscond or commit other offences. They are perfectly entitled to have regard to that.
639 Under the Amendments which are to be moved by the noble Lord, Lord Harris of Greenwich, which are setting out the factors to which the magistrates should have regard when considering an application for bail, and considering the application of Schedule 1, there it is specifically provided that the magistrates shall have regard to the character of the individual. Surely, his character must mean his behaviour, conduct and what the magistrates make of his mental make-up. Therefore it is entirely unnecessary.
The real fault here I suggest in what the Government are purporting or intending to do apparently in another place is that there is a confusion of mind. It is a confusion between the proper understanding of the criteria to which the court ought to have regard when considering an application for bail, and the factors which they ought to bear in mind. Under the Bill as it will read when Lord Harris's Amendment has been carried, as no doubt it will—and that is, of course, merely a rehash of the Amendments which have been previously proposed by the noble Lord, Lord Hailsham of Saint Marylebone—there will be a clear distinction so far as accused persons are concerned, not convicted persons, between the criterion which the magistrates have to consider in deciding a bail application, and the factors which they have to take into account in interpreting those criteria. That is the mistake which has been made here.
What has happened is that the mental state of the person is certainly a factor, and the fact that the court might be intending to impose a custodial sentence is certainly a factor which they are entitled to take into consideration when they are considering the application of the criteria which are set out in Schedule 1. I am sorry to have gone on for so long, but it is a great disappointment to me that we have not been able to argue these matters out more fully in this House, and before very long this Bill will disappear from our purview.
Baroness WARD of NORTH TYNESIDE
My Lords, I do not wish to say very much at this time, but as I have been a magistrate for many years I should like to support the case which has been put forward this afternoon by two most distinguished legal luminaries. Both as 640 a Member of another place and now as a Member of your Lordships' House, I have always thought that there are far too few magistrates who are Members either of another place or here. For many years, magistrates have felt that it has been very difficult indeed to get various points of view put across to a point where they could be reasonably and wholeheartedly discussed. I was a lay magistrate without any legal training, but I think it is terribly important that on this occasion we should get this Bill on the Statute Book with all the necessary Amendments which most magistrates would wish to see. I very much enjoyed the two speeches that have been made, and I thought that, since I have had experience as a magistrate, I might just say these few words in support of the points of view put forward, which ought to be dealt with by the noble Lord the Minister when he comes to reply.
§ 4.2 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, I should like to deal with the substance of this Amendment first and then turn to some of the other matters which have been raised. First, as my noble and learned friend Lord Gardiner implied when he moved his Amendment, the Amendment is defective and will not in fact achieve the intention he set out. I would rather not waste the time of the House explaining why that is so, but it is the fact. However, the Amendment enables me to come back to one point of substance. It is perfectly true that the noble Lord, Lord Foot, moved Amendments in Committee which had the same general objective as this Amendment, and they were withdrawn following an undertaking that the Government would look into the matter at a later stage. emphasise those last words, because I never gave an absolute guarantee that the matter would be dealt with in this House. I would have hoped that might have been the case, but unhappily that has not been found possible. As my noble and learned friend has put down this Amendment, it enables me to say that we do intend to introduce Amendments in another place to amend Clause 4, which at present applies only to remand before conviction, so as to create a presumption in favour of the grant of bail to a person whose case is adjourned after conviction but before sentence, for the purpose of 641 enabling inquiries or a report to be made to assist the court in dealing with that person in connection with the offence. Such a change will involve modification to Schedule 1 which, as at present drafted, deals with cases of accused persons.
My noble and learned friend raised the question of the non-imprisonable offences, and asked what was the view of the Government as to the risk of people being remanded in custody. Indeed, it sometimes happens that a person is remanded in custody for a non-imprisonable offence. I undertook to look into this matter, and I indicated that Government Amendments are to be put down in another place to limit the power to remand a prisoner in custody for a non-imprisonable offence.
My noble and learned friend and the noble Lord, Lord Foot, have argued one particular aspect of their case today, and they have said that we must be very careful about this because there is the risk that a situation might arise where magistrates could remand in custody in order to give somebody a taste of prison. Of course, this is clearly a matter of opinion, and there is always a risk that some magistrates will do this. But the Government take the view that when the Bill is amended as we hope it will be, justices will be required to give reasons for their decisions. This is the safeguard. It will be a requirement that the magistrates have to give a reason. If they act unreasonably, steps can be taken by the legal representatives of the person concerned. I hope that will give some satisfaction to my noble and learned friend and to the noble Lord, Lord Foot.
I shall also hold discussions with my right honourable friend the Home Secretary on the points made by my noble and learned friend and the noble Lord, Lord Foot, regarding those persons who are apparently mentally disordered. I concede straight away that this is a difficult matter; but one has to look into the practical problem of what a bench of magistrates is supposed to do when confronted with a difficult case of a person who appears to be significantly mentally disordered. The bench has to take a decision, and it is not an easy one. Nor is it easy to draft provisions about this with any degree of precision, which is one 642 of the reasons why we have not been able to come forward today with Amendments, as we would have wished to do. Nevertheless, I will certainly discuss with my right honourable friend the Home Secretary the points which have been made by my noble and learned friend and the noble Lord, Lord Foot.
Coming back to the points raised by the noble Lord, Lord Foot, with his customary courtesy, I certainly apologise for the fact that we have not been able to put down these Amendments before the Bill leaves this House. But it is a perfectly normal procedure, when a Bill starts in another place and comes here, for matters which are raised to be put right in your Lordships' House. In this case, the Bill has started in this House and Amendments will be put down dealing with the points which have been raised. Although they will be put down in another place, this House will have the opportunity to discuss them when the Bill is returned to us. There is no risk of the House being debarred from expressing its views on these matters. If the Bill is amended after it has left this House, the Amendments will be put before your Lordships in due course.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I do not want to prolong this debate, but perhaps I might be allowed just to say that of course what the noble Lord has just said is a matter of some importance. On Second Reading I raised the question of first conviction bail, which is both complicated and important, as this debate has very clearly shown. All I say is that we are now parting with the Bill in a state in which it does not deal with one of the main subjects with which it will deal when the Government's Amendments are put down. Before they are put down and considered, I hope that the noble Lord and his right honourable friend will consult with the Common Law Judiciary and, in particular, with the Lord Chief Justice, who is, I know, very much concerned with the proposals contained in this Bill.
§ Lord GARDINER
My Lords, I am grateful to my noble friend Lord Harris of Greenwich for what he has said. I share the views expressed by the noble Lord, Lord Foot, but I think that, owing 643 to the course of events, it is unfortunate that we in this House have not been able to use the talents we have to further improve the Bill. Subject to that, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 1 [Bail for accused persons: supplementary provisions]:
§ 4.10 p.m.
§ Lord HARRIS of GREENWICH moved Amendment No. 2:
Page 15, line 33, at end insert—
. In assessing, in relation to any event mentioned in paragraph 1 of this Schedule, whether the likelihood or the consequences of the event's occurring constitutes or constitute an unacceptable risk, the court shall have regard to such of the following considerations as appear to it to be relevant, that is to say—
§ The noble Lord said: My Lords, this Amendment has been put down as a result of an undertaking which I gave to the noble and learned Lord, Lord Halisham of Saint Marylebone, on the basis of which he agreed to withdraw an Amendment with a similar general objective. The Amendment seeks to embody in the Bill some guidance to the courts on the factors that they should take into account when applying the tests set out in paragraph 1 of Schedule 1, as to whether or not bail should be granted. As the noble and learned Lord, Lord Hailsham, recognised, it would not be practical to set out every conceivable factor which might be relevant to the bail question in any case.
§ The factors listed in the Government's Amendment include in substance those contained in the Amendment which the noble and learned Lord moved, but with one addition; namely, the question of the strength of the evidence against the accused. The desirability of adding this consideration was pointed out by the noble and learned Lord, Lord Wigoder, 644 who was supported by my noble and learned friend Lord Gardiner, and that is now incorporated in the Amendment which I am now moving.
§ The Government's Amendment necessarily includes a reference to "unacceptable risk" which was inserted at the Committee stage of the Bill after a Division. I should perhaps say now to the House that the Government reserve their position on whether they will seek a further amendment of these words in another place. However, although I think it only right to mention this possibility now, I do not think it need affect our consideration of the present Amendment. Even if other words are chosen, the wording which is now before us in this Amendment can, in my view, be retained with possibly a minor change in the opening words. With that introduction, my Lords, I beg to move.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I have first to thank the noble Lord, Lord Harris, for discharging, as we had all accepted, his undertaking to me on Report stage and I am grateful to him for having given effect, in substance, to the Amendment which I proposed both in Committee and on the Report stage. I think I may say, frankly, that he has improved it. The last guideline, paragraph (d), in his proposed Amendment is one which I unaccountably omitted and should have inserted in my own Amendment. So I am grateful to him for improving the draftsmanship. Whereas I am not wedded to any particular form of words, and I accept that "unacceptable risk" was a child of my own—although it has, as the noble Lord, Lord Foot, pointed out to me in a private letter, been used by members of the Judiciary in other cases—I should be sorry to see the noble Lord depart from the spirit of that change which was accepted by the House at my instance.
One has in these cases to weigh two quite different considerations which are very difficult to reconcile in practice. One is the desirability of retaining at liberty anybody who has not been convicted of a crime, and the other is the protection of the public and the administration of justice. I am quite sure, in my own mind, that the Bill as originally drafted went too far in the former direction 645 and did not sufficiently take into account the latter consideration, and in that I was fortified by the various authorities to whose authority I appealed in my Second Reading speech. While, therefore, I am in no way personally committed to the phrase which I am bound to say I introduced myself, I hope that its spirit will be accepted.
Having said that, may I just add that I think we have improved this Bill during its passage through this House. We have attempted to do so without any reference to Party considerations and without any undesirable backstage negotiations. We have simply placed at the disposal of Parliament such talents as we possess, and debated them publicly. I am grateful for the spirit in which the noble Lord, Lord Harris, has listened to the suggestions we made and, in some cases, given effect to them. I do not wish to prolong this debate, and therefore I conclude as I began with a word of thanks to the noble Lord for his courtesy and attention.
§ Lord LEATHERLAND
My Lords, I shall be brief. I want to say how very warmly I support the Amendment that has been moved by my noble friend Lord Harris of Greenwich. I cannot speak with any of the great legal authority that we have around us, and I speak just as one who for over a quarter of a century has been a mere justice of the peace, and for most of those years chairman of a magistrates' court. I felt, as did many of my magistrate friends, that in its original form this Bill was too restrictive of the powers that magistrates might have to refuse bail in cases where they felt it should be refused.
My mind goes back to a case which came before the court over which I was presiding some years ago. Three men were charged with breaking and entering a sub-Post Office. As any of your Lordships who have kept sub-Post Offices will know, there is often a vast amount of money stored in the safes on those premises. Two of those men were crouched before the safe, they had before them an array of tools—drills, hammers, chisels and jemmies—and outside in a van there were six sticks of dynamite. An impassioned plea was put to us by learned counsel who represented those three men. He was a Conservative MP who now ranks rather eminently in the law. He explained 646 to us that he could provide bail of many thousands of pounds and that two of his sureties would be Members of Parliament.
Now, my Lords, things are not always as they seem. The case looked rather black against those three men as it had been explained to us in court, but I thought, having regard to the influence of learned counsel, that we ought to retire to our own private room to consider whether we should grant bail as he had requested. As I said, things are not always as black as they seem. Those three men might have been sent by the Postmaster General to repair a defective safe at that Post Office, though midnight was hardly the time to do it. They might have been postgraduate students from a university who had come down to prepare themselves for a thesis on criminology. But having regard to all the circumstances of the case, we decided to announce that we would not grant bail.
I feel that magistrates, who may not be learned in the law but are fairly sensible men and women, should have some discretion on the question whether they grant bail or refuse it. I felt that the Bill in its original form was too restrictive. Therefore, I am delighted that my noble friend, by his Amendment, is giving magistrates a little more discretion than they had originally.
§ 4.18 p.m.
§ Lord GARDINER
My Lords, if I may raise one small point, it is not unusual when a Bill is passed which has to be administered by justices of the peace for the Home Office to send out a helpful memorandum. If they do so on the wording of this Bill, I do not know whether they will be able to point out that the seriousness of the offence is, of course, relevant, because the more serious the offence, the longer the sentence is likely to be, and therefore the greater the temptation to skip bail. If they do that, will they also point out that the men in question may be guilty or they may be innocent? If you are innocent, then the more serious the offence the more vital it is for you to get bail if it is a proper case. If it is a heavy case, you may have to see accountants and solicitors, have interviews and gather stacks of documents.
It may be a simple case, dependent on identity. If at the time in question you 647 were in your local pub, with a lot of people you know very well by sight and often talk to but you do not know their names, you want to find them. How can a solicitor find men whose names he does not know, when he does not know what they look like? If it is a serious offence you are less likely to get bail, and that has always been a two-edged weapon, because if the man is innocent, and he may be, then the more serious the offence the more important it is to get bail.
§ Lord HARRIS of GREENWICH
My Lords, I will certainly take into account what my noble and learned friend has said in terms of dealing with any circular to magistrates. So far as this Bill is concerned, guidance will be given to magistrates on this point. Indeed, it was our intention to deal with the body of this Amendment in that circular until we were persuaded by the noble and learned Lord, Lord Hailsham of Saint Marylebone, that it would be better and preferable to incorporate it in the Bill, and that we have done.
So far as my noble friend Lord Leather-land is concerned, certainly anyone who has been a magistrate—I was one for a period of only 12 months when I held that position on an ex officio basis—knows how much devoted work is done by magistrates and of the great body of wisdom that they possess. Nevertheless, it is a fact that in the Government's view too many people are remanded in custody. At the moment we face a situation where our prisons are intolerably overcrowded. The prison population is still rising and this is a most formidable problem which we are now having to face up to.
Having said that, I join with the noble and learned Lord, Lord Hailsham of Saint Marylebone, in thanking all those who have assisted us in what we have undoubtedly done—that is, to improve this Bill—and I thank him very much for the gracious words he directed to me.
§ On Question, Amendment agreed to.
§ Lord HARRIS of GREENWICH moved Amendment No. 3:
Page 15, line 37, at end insert—
"default", in relation to the accused, means the default for which he is to be dealt with under
section 6 or section 16 of the Powers of Criminal Courts Act 1973.
§ On Question, Amendment agreed to.
§ Amendment (privilege) made.
§ Moved, That the Bill do now pass.—(Lord Harris of Greenwich.)
§ 4.22 p.m.
§ Lord GARDINER
My Lords, if I am not unduly trespassing on the time of the House, before the Bill is passed may I say that I agree with the noble and learned Lord, Lord Hailsham of Saint Marylebone, that we have improved it to some extent. I think that "unacceptable risk" is much better than either "probable" or "possible". We have better post-conviction legal aid, although we do not know whether it will work. However, there are two other matters to which I should respectfully like to refer.
First, as I explained to the House, I attended the Second Reading of the Bill but had to leave for an appointment as Chancellor of the Open University which I could not avoid. Therefore, I could not join in the debate, nor was I able to put down Amendments at the Committee stage. However, at the Committee stage I raised this point: ought not there to be a limit on the time during which a man can be kept in custody while he is waiting for his trial? In general, this time is about 11.8 weeks. However, as a former chairman of Justice, many times we had brought to us very much longer periods than that—periods of six months, or nine months, or a year. I remember one period of 18 months, with the police going on and on saying, "We have not completed our inquiries"—it is very difficult for magistrates to deal with that—or sometimes, "We are inquiring as to further possible charges". Sometimes I believe the real reason is that they want to pick up somebody else whom they wish to try with this man. Therefore, ought there not to be a time limit? After all, long before six months are up this man has lost his job; he has no money coming in; he is in arrears with his rent and he may lose his home as well.
At the Committee stage of the Bill I pointed out that since 1711 it has been the 649 law in Scotland that a man cannot be kept in custody—that includes his trial when he is also in custody—for more than 110 days. This law of 1711 is now part of Clause 101 of the Criminal Procedure (Scotland) Act 1975. That clause provides that, unless his trial is completed within 110 days of his first being in custody, he shall be forthwith set at liberty and declared for ever free from all question or process for the crime for which he was committed. Therefore, the question which I raised on that occasion was whether this does not always have a good effect on prosecuting authorities, whoever they are. When one bears in mind that somebody in this country was kept in custody for 18 months, which is 540 days, may I ask the rhetorical question: how has it come about that ever since 1711 the prosecuting authorities in Scotland have always been able to complete a trial within 110 days from the time a man was first in custody while it is quite impossible to do so here? Apparently, it causes no trouble at all in Scotland.
When I raised this point my noble friend Lord Harris of Greenwich said that he would gladly look into the matter. Since then there has been an absolutely deafening silence. No Amendments have been put down. I have been told nothing at all as to whether or not the Government have gone into this matter, whether they agree with it and will introduce an Amendment in the other place, or whether they do not agree with it.
The second point which I raised was much more important. It was that if a man is denied bail and is kept in custody, even if only for three months, almost certainly he will have lost his job and he may have lost his home, but when the date of his trial arrives the police say, "Sorry, we find out now that it was another man who committed this offence and we offer no evidence". I described it as a disgrace to justice that that man has no legal right to compensation of any kind. Of course, the Home Secretary, wearing his scarlet robes as the Royal Prerogative, may, if he thinks fit, grant him ex gratia a payment of such amount as he may think right. However, as my noble friend Lady Wootton of Abinger and others pointed out, in other countries—I believe I am right in saying in Germany and in France, and my noble friend Lady Wootton says also in Japan—there is in 650 such circumstances a legal right to compensation. I reminded my noble friend Lord Harris of Greenwich that in his first speech as Prime Minister the present Prime Minister said:Let us set ourselves some aims. Let us root out injustice and put it right, wherever we can".We could have done that in this Bill. As I said at the time, and clearly it was the case, it would have meant altering the Long Title; but because it suited the Government for another purpose at the Report stage of the Bill they themselves extended the Long Title. Here was an opportunity when we might have put it right. My noble friend Lord Harris of Greenwich said: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".My noble friend having said that, we then had another deafening silence. Nothing happened at all. My noble friend put down no Amendment and I received no letter—nothing. Therefore I hope that the House will excuse me if before we pass this Bill I venture to ask for some indication of the Government's mind on these two points.
§ Lord HARRIS of GREENWICH
My Lords, my noble friend is on to an exceptionally good point. My noble friend should have had a reply and he will get one by the end of this week. I apologise to him for the fact that he has not had a letter from me.
§ On Question, Bill passed, and sent to the Commons.