BAIL ETC. (SCOTLAND) BILL

HL Deb 06 November 1979 vol 402 cc700-17

2.46 p.m.

The MINISTER of STATE, SCOTTISH OFFICE (The Earl of Mansfield)

My Lords, I beg to move that this Bill be now read a second time. The Bail etc. (Scotland) Bill forms an essential part of the major reform of Scottish criminal justice which the Government propose for this Session. The Government intend before the end of the year to introduce the substantial measure on Scottish criminal justice which was promised in Her Majesty's gracious Speech. However, we have brought forward as a matter of urgency this short but much-needed measure—the Bail etc. (Scotland) Bill—to deal with the acute staffing problems associated with Saturday courts and to reform the bail system.

The association of these two items may not be immediately obvious. The abolition of mandatory court sittings on Saturdays will lead to substantial savings in money and other resources but, as it could by itself lead to more people spending time in custody over the weekend if arrested on a Friday, it is clearly desirable to legislate at the same time on the system of release on bail in Scotland which the Government had in any case intended to reform substantially and in a way which should greatly reduce the numbers of those held unnecessarily in custody awaiting trial on a first appearance in court. I should stress that while the need to abolish mandatory Saturday courts was the reason for our promoting this Bill in advance of the more comprehensive criminal justice package, it is the reform of the bail system in Scotland which is significant.

This Bill therefore is modest in scope, but we believe that it will greatly improve the working of the criminal justice system in Scotland, making it more efficient and humane. Although some misgivings have been expressed about how some provisions in the Bill might operate in practice, it has generally been welcomed and, indeed, when the previous Government addressed themselves to the same problems in their own Criminal Justice (Scotland) Bill, very similar provisions were proposed.

The very full and thorough reports of the Committee on Criminal Procedure in Scotland under the chairmanship of the late Lord Thomson provide the basis for the reform of criminal justice in Scotland, and this Bill draws very heavily on the recommendations of that committee, although we have taken the opportunity to reflect on and, I believe, even improve on its recommendations.

The Government believe that our present system of bail in Scotland is most unsatisfactory, in that it does not fully achieve its principal aim of avoiding unnecessary pre-trial imprisonment. Clauses 1 to 9 of the Bill therefore provide for the abolition of money bail and the institution of a new system of release on conditions. Only in exceptional circumstances—where the court is satisfied that it is appropriate to the special circumstances of the case in question—can a deposit of money be required as a condition of hail. I should stress the significance of this to those who are more expert in the criminal law of England. Indeed, in parenthesis to those noble Lords who may be accustomed to sitting on the benches of the magistrates' courts in England, may I say that this Bill is a fascinating little cameo of the different conditions and indeed philosophy of the Scottish legal system compared to that which obtains in England.

In Scotland the only way of obtaining release on bail at present (assuming that the court has granted bail in principle) has been to pay over the sum of money fixed by the court. It is not possible to obtain release on the promise to pay if the accused fails to appear, nor on a surety being offered by a third party. This Bill will change all that and a system of conditions—but not recognizances—will become the basis of release on bail in Scotland. Failure to appear at any diet of which the accused is given due notice and breach of any conditions are to be statutory offences. At present in Scotland the only penalty for failure to appear is the loss of the comparatively small sum paid into court to secure release. The new Bill is therefore intended to make the bail system more humane by making bail more accessible to those who are granted it. It is also intended to make it more effective by providing more severe punishments for those who do breach bail.

The Thomson Committee's conclusion was that the accused's need to find money bail prevents his being released in many cases, at least in the first instance; and has no significant effect on the likelihood of his appearing at subsequent proceedings. Moreover, a very great deal of work is involved for the courts in collecting and accounting for the money involved. The conclusions reached by the committee were underlined by a Scottish Office Social Research Study on Pre-Trial Bail and Custody, which was published in 1976. That study drew on information about bail which was granted between February 1972 and January 1973 but there is nothing to suggest that the passage of time has cast doubt on its general conclusions. In that period the most common amount set for bail was £10 although there was a range extending from 50p to £1,000. The average amount fixed as bail was only about £14. Even in the period of the study these sums were relatively small, but more than a quarter (that is, 27 per cent.) of those granted bail were unable to deposit the money required immediately and were held in custody for at least part of the time between the grant of bail and the eventual trial. Nearly 2 per cent. of those granted bail could not find the money at all and spent the full time before the trial in custody.

This extension of imprisonment might arguably be justified if the money deposited was a guarantee that the accused would turn up in court, but the study also found that the amount of bail fixed appeared to have no significant effect in deterring those granted bail from absconding. I would remind the House that loss of bail money is the only penalty at present for breach of bail. The most common amount fixed for those who subsequently absconded—that is £10—was exactly the same as that for those who did not. Moreover, there was no more than a marginal and statistically insignificant difference between the average amount of bail fixed for those who subsequently absconded and the average amount fixed for those who neither absconded nor re-offended while on bail.

A court is concerned with protecting the public and safeguarding the interests of justice from any undesirable consequences of an accused person being at large, and not merely with preventing the accused absconding before trial or avoiding his unnecessary detention. Under the present system of bail in Scotland, the fairly small amounts of bail set are designed only to ensure that the accused presents himself for trial when required. This Bill provides however that the conditions which may be imposed should be such as to seek to ensure not only that the accused appears at diets of which he is given due notice but also that he does not commit an offence while on bail; that he does not interfere with witnesses or obstruct the course of justice in his own case or anyone else's; and that he makes himself available for any necessary inquiries. It is therefore a much more subtle and effective instrument for securing the aims of justice while the accused is at liberty pending trial. The Bill itself does not lay down the conditions which the court may impose to achieve these ends; nor is it the practice in Scotland for the Crown or the Government to attempt to give guidance of this sort to judges. We might however reasonably imagine that a court might require an accused to hand over his passport or stay away from a particular area, place or person.

As I have said the only penalty for breach of bail at present is the loss of the relatively trivial sum paid into court. This Bill will make much more severe penalties available for the relatively serious offence of failure to turn up or breach of bail conditions. Thus an accused who absconds or breaches the conditions imposed on bail will be liable to a fine of up to £200; and to imprisonment for a period not exceeding 60 days where he is tried in a district court, or up to three months when he appears before a sheriff or in the High Court. In view of the considerable expense and inconvenience arising from the failure of an accused to turn up for trial under solemn proceedings, the penalties in such a case are even more severe. An accused granted bail in relation to solemn proceedings who fails without reasonable excuse to appear at any solemn diet of which he has been given due notice will be liable on con viction on indictment to a fine of unlimited amount and a period of imprisonment of up to two years, in addition to any penalty he may have incurred for his original offence.

The more extensive and yet specific aims of bail set out in the Bill and the power to impose conditions with enhanced penalties for breach of the law should give courts much more confidence that bail will not be abused. The Bill will, we hope, therefore lead to courts using bail more readily to release the accused before trial. Similar arguments apply also to police liberation and this should reduce the number of people who, though later acquitted or given non-custodial sentences, nevertheless at present spend some time in custody before they are tried. In any event, and we attach the greatest importance to this, the abolition of money bail is likely to lead to a reduction of over 2,000 a year in the number of needless committals to custody from the sheriff courts alone. I would emphasise that this minimal figure only includes those held in custody after bail has been granted until they deposit the sum of money required, and only from sheriff courts.

Our only significant departure from the Thomson Committee recommendations is that we are leaving open the possibility of the courts' requiring a deposit of money as a condition of bail in very special circumstances. Even the committee did not go so far as to suggest that there were no circumstances in which a requirement to deposit money would be useful and we believe there are cases where such a requirement might be appropriate. We have therefore included that option for the courts, although not for police liberation. The sort of cases we have in mind are, for example, major frauds, offences against fishing regulations by foreign skippers where large amounts of money are at issue and offences by people with substantial financial assets who lack strong roots in this country.

As I have said, only the courts will have the power to impose a requirement for a deposit of money, and only then if they are satisfied that the imposition of that condition is appropriate to the special circumstances of the case. I should also stress that any requirement to deposit money will be imposed as one of the conditions of release and will thus fit into the framework of the new system. In particular, such a requirement, like any other condition of bail, would be subject to appeal by both Crown and accused. We do not expect, therefore, that this power will be used often and never, we would hope, for small amounts of money. I can understand the fears of those who argue that the essential conservatism of the legal system will lead to continuation of money bail under a new name but I am sure that these fears are unfounded. This Bill simply leaves open the option of requiring a deposit of money where this is peculiarly appropriate, and we are confident that it will not be abused.

Another important aspect of the bail package is that the power of the police to release on interim liberation is being extended. At present the police may only liberate on the deposit of money and that is being abolished in parallel with the abolition of bail money itself. Moreover, the police are being given power to liberate those charged with any offence triable in the summary courts where at present they are only entitled to liberate those charged with offences triable in the district court, a much more restricted category.

Noble Lords might find it helpful if I were to outline the purpose served by the various clauses in the Bill. However, bearing in mind that the only noble and learned Lord down to speak is the noble and learned Lord, Lord McCluskey, I feel that I can shorten my remarks to that extent, because he will appreciate perfectly well, I have no doubt, what the clauses mean.

In conclusion, I should say a little about the provision on court sittings. Clause 10 provides that courts are no longer under a statutory obligation to sit on Saturdays. There are now acute difficulties in persuading court and fiscal support staff to work the unsocial hours which are necessary if Saturday court sittings are held. There are also problems over recruitment, given that most comparable clerical and typing jobs enjoy a five-day week. It is for these very practical reasons that the Government have concluded that Saturday courts should not in future be mandatory.

It will however be possible for courts to sit on a Saturday or, as is not the case at present, on a Sunday if this is deemed necessary, for example, after a riot at a football match. This introduces a desirable element of flexibility. It is, however, not expected that courts will sit on these days other than very infrequently. As I said earlier, the Government believe that the measures being adopted in Clauses 1 to 9 on the reform of bail and in particular the widening of the discretion of the police to grant interim liberation should obviate the risk that the abolition of mandatory Saturday courts might cause an increase in the number of those held in custody before trial.

I believe the Bill is a well thought out and useful contribution to the continuing improvement of criminal justice and procedure in Scotland. I hope it will enjoy the support of noble Lords on all sides of the House. My Lords, I beg to move.

Moved, That the Bill be now read 2^a.—(The Earl of Mansfield.)

3.2 p.m.

Lord McCLUSKEY

My Lords, since time immemorial noble Ministers of State at the Scottish Office have risen to their feet at the Government Dispatch Box here to move the Second Reading of a Scottish Bill only to be dismayed and disheartened to see noble Lords rise in their hundreds from all parts of the House and pour out of the Chamber as if they had suddenly remembered that they had some pressing engagement elsewhere, and I fear something similar happened today. This phenomenon is not produced by any lack of eloquence or lucidity in the Ministers concerned. They have all been lucid and eloquent, none more so than the noble Earl. It derives, rather, from the comparative lack of interest here in domestic Scottish legal matters.

Lord DERWENT

My Lords, may I interrupt the noble and learned Lord to tell him that it is simply because of the fright we have of the Scots?

Lord McCLUSKEY

There must be more than one reason for everything, my Lords. I believe the irony of the whole situation is that the apathy of noble Lords about such matters has been matched only by their passion in opposing proposals we introduced in the last Parliament to ensure that such questions were debated not here but by Scots assemblymen in Scotland. None the less, the House will wish me to thank the noble Earl for his careful and helpful exposition of the principles and content of the Bill.

Indeed, my pleasure in hearing the noble Earl introducing the Bill is tempered only by my regret that the Government did not give his noble and learned colleague, the Lord Advocate, this excellent opportunity to break his long silence, but we must curb our impatience and hope he will soon have an opportunity to give the House the benefit of his wise advice. Perhaps I should also add that I regret to see from the list of speakers that no one will speak from the Liberal Benches. Now the Liberals are an important party in Scotland and care about these matters, and perhaps the remedy there lies in having a Scottish Liberal lawyer on the Liberal Benches in this House.

The Bill itself deserves, I believe, a modest welcome. It has respectable antecedents because it was largely conceived by my colleagues and myself in the last Government. We did a lot of work over a period of years in selecting and drafting a set of proposals for the reform and improvement of criminal justice and procedure in Scotland. But owing to the necessary pressures of the Parliamentary timetable, we had to cannibalise our proposals two Sessions ago and bring forward a small part of them only in the shape of the Community Service by Offenders (Scotland) Bill; that was regarded as urgent. Then our own Criminal Justice Bill, which itself was formed as the result of selecting from several hundred different proposals, fell victim last Session to the General Election. Now the Government have cannibalised another small part of that same Bill and incorporated that in this modest little Bill. One of these days we shall no doubt see the Government's own Criminal Justice Bill for Scotland and I eagerly await some authoritative announcement as to its contents. Indeed, I have put down a Question for Written Answer in the hope of discovering what is proposed. Perhaps I may be allowed to say that I am told that the BBC and the Scottish Press announced in the last few days that. I was an opponent of the Government's. Criminal Justice Bill and would lead, jointly with someone else, a campaign against it. That is not true. I have said no such thing and given no authority for any such statement. In so far as the Government's proposed Bill borrows from the measure which we introduced, I shall support it and invite my colleagues to do the same. In so far as the Government's proposals differ from what we decided upon, I shall examine the new proposals and form my view on their merits. If, for example, the Government should propose to give the police much greater powers than we proposed they should have, then we shall scrutinise these powers carefully, trying to balance the interests of the criminal authorities and the legitimate interests of the citizen. If the Government should propose to reduce the size of the criminal jury in Scotland from 15 to 12, I shall certainly oppose that piece of nonsense, as I did when I was in office. If the Government seek to reintroduce corporal punishment as the present Solicitor-General for Scotland did with the assistance of the present Under-Secretary of State, Mr. Rifkind, earlier this year, I shall certainly oppose that barbarous proposal. But I will not turn coat and oppose proposals of the kind which I myself would have supported had it been my privilege and responsibility to introduce a Criminal Justice Bill in this House.

Let me say by way of comfort to the Government in relation to this Bill that one of the problems of preparing a comprehensive Bill is the problem of striking the right balance between measures designed to ensure the easier conviction of the truly guilty and measures designed to protect the legitimate interests of the accused and of those who fall to be punished for their guilt. One result of this process of cannibalisation of which I have spoken is that by the time we come to consider the Criminal Justice Bill which the Government will introduce we shall already have enacted I believe—in this Bill and in the Community Service by Offenders Bill—some of the measures which were conceived in the interests of accused persons. And it would be quite wrong for me or for anyone else to leave that out of account in assessing the overall balance of the forthcoming Bill. All three measures must be looked at together as part of one package in order to see whether or not the proper balance has been achieved.

This Bill has our general support. Money bail in Scotland without conditions has, we believe, outlived its usefulness. My colleagues in another place opposed the retention in this Bill of a form of money bail—your Lordships will find it in Clause 1(3). I will not ask the Government to abandon this provision altogether; it has the support of Her Majesty's judges in Scotland and of a majority in the other place, and I acknowledge that there is a reasoned argument in favour of it. But I will ask the noble Earl, as I do now, to think again about the wording of the last four lines of Clause 1(3). I think this wording will make it too easy for the old-fashioned money bail to survive in cases where it is not now intended to survive.

The noble Earl referred to the three situations where he envisaged that money bail might continue to be used, and I do not dispute that it would make quite a useful contribution to the courts' techniques in relation to such cases, but I think there is a danger that if the words are not sufficiently tight, other cases may be drawn in. I shall ask the Government to consider adding other words or altering the existing words so that in that subsection something of this sort might appear: but only where the court, or as the case may be, the Lord Advocate, is satisfied that the imposition of such condition is the only course appropriate to the special circumstances of the case, and the accused agrees to the requirement". Such wording would, I believe, restrict this requirement to the kind of case the noble Earl mentioned and the kind of case the Government have in mind, and effectively prevent the courts from slipping back into the too ready requirement of money bail.

Secondly, I believe that the penalty of two years' imprisonment—and let me repeat that: two years' imprisonment—introduced by paragraph (b) of Clause 3(3) of the Bill is quite unnecessarily severe. I have read with care the defence of that provision by the Under-Secretary of State for Scotland, Mr. Rifkind, at the First Scottish Standing Committee on 10th July 1979, and I do not agree with it. If by absconding and thus failing to turn up on the morning of his trial an accused person attempts to defeat the ends of justice, I think that he should be charged with that crime. From my reading of Scots law I am quite certain that if a person deliberately sought to defeat the ends of justice by failing to turn up on the morning of his trial—perhaps in order to allow much time to pass, witnesses' recollections to fail, witnesses to die, or evidence otherwise to be lost—he could be charged at common law with that crime. Then the whole circumstances, including his motives, could be gone into.

But what we are doing in this Bill is saying that if a person fails to turn up for a jury trial on the morning of the trial, the court—and that includes the sheriff—may impose two years' imprisonment in respect of that failure. So we leap from the present situation where he forfeits £10 or £14 to a sentence of two years' imprisonment, which of course is a maximum, and I think that this really goes too far. In approaching the matter in this way the Bill would give the sheriff in Scotland a power to send a man to prison for four years: two years in respect of the crime of which he was convicted, and two years in addition in respect of his failure to turn up for the trial on the first occasion. I do not believe that that is right.

In the discussions on the previous Bill there was a proposal put forward on behalf of the Opposition (as they then were) to extend the sentencing powers of the sheriff. There are arguments both ways on that particular question, and I believe that these arguments ought to be looked at carefully, and perhaps we shall look at them carefully in the context of the new Criminal Justice Bill. But to deal with this by a side door is, I consider, quite wrong. I hope that if noble Lords opposite, who hear or read what I say, believe that it is a danger to give a sheriff power to impose four years' imprisonment where he can now impose only two, they will perhaps speak to the noble Earl and ask him to modify this proposal which was not in our Bill and does not derive from the Thomson Committee on Criminal Procedure. I hope to return to this matter at the Committee stage.

Clause 10, to which the noble Earl referred, enshrines what I see as a regrettable necessity. At the moment a court in Scotland may, and does, sit on a Saturday morning in order to deal with people who have been detained in custody since some time on Friday. This clause means the virtual end of Saturday sittings for dealing with persons detained in custody after falling foul of the law on a Friday night. Friday night is pay night. For many it is the end of the working week, and it is the night when people are most likely to get into trouble. As a result of this provision such people are unlikely to be released before Monday. They certainly could not apply before Monday to a court for release. However, I concede that we cannot hope to go on imposing the burden of Saturday courts on sheriffs, procurators fiscal, court staff and the police, and this clause must therefore stand.

But let me draw your Lordships' attention to the latter parts of the same clause—Clause 10. One sees from that that it is possible to have the courts shut for three consecutive days; that is to say, where there is a public holiday on Monday preceded by Saturday and Sunday, or indeed where there is a holiday on Friday followed by Saturday and Sunday. I wonder whether this does not perhaps go a little too far. Is it not possible to avoid the result that someone who is detained on a Friday cannot appear before the court until the following Tuesday morning?

In Scotland we have always prided ourselves—rightly, I believe—on bringing the accused before the court very swiftly. Would the noble Earl not consider a new subsection? Again, I cannot hope to draft as carefully as I might when we come to this matter at the Committee stage, but would he not consider a clause along the following lines: Where a court holiday occurs on a Friday or a Monday with the result that persons arrested on a Thursday or Friday respectively would have to wait three days before the next lawful day, the court shall sit at least once during such three days to entertain applications from such persons for interim liberation"? That would mean that on the rare occasion—perhaps only once or twice a year—when there was liable to be a three days' vacation, as it were, of the court, special arrangements would be made.

What the Government have done in introducing the Bill—and I fully understand and sympathise with them—is to treat as separable and urgent a few of the more technical and less controversial parts of the Criminal Justice Bill that we introduced. I regret, however, that they did not see it possible to go a little further and introduce at this stage the proposals to modify slightly the 110-day rule. As the noble Earl will know, our proposals were contained in Clause 20 of our Bill, and the modification was to allow the 110 days to run to the start of the trial, not to its conclusion. I should explain to those of your Lordships who are not familiar with the provision that we have an excellent provision that works in Scotland, yet I believe hardly anywhere else in the world, providing that if a person is detained in custody, he must be brought to trial, and his trial concluded, within 110 days of his being committed fully into custody. That is a summary of the provision and there are many modifications, but in essence it means that, however serious the charge, no person can be detained for more than about 3½ months.

The trouble is that in a number of modern cases, whereas a trial has started within 110 days, there have been great difficulties in getting it finished within that time. Accordingly, we introduced a proposal to have the 110 days run to the beginning of the trial, not to the end of it. That was not a controversial proposal; it was not opposed in the other place. I consider that it is fairly urgent because any week now another such case might come up despite the vigilance of the Crown Office and the procurators fiscal. So I believe that that is a matter which should have been attended to at this stage, and I ask the noble Earl whether it is too late to introduce this desirable reform, which was not opposed in another place and which I would hope would go through without controversy?

I have a number of criticisms of points of detail which I hope can be considered at the Committee stage, but I believe that the principles of the Bill are sound. It is a small but useful Bill, and I trust that your Lordships will give it your support. Subject to the points that I have made, and which I hope noble Lords will think about and perhaps speak to the noble Earl about, I would ask your Lordships to support the Second Reading of the Bill.

3.18 p.m.

The Earl of MANSFIELD

My Lords, I wish to thank the noble and learned Lord, Lord McCluskey, for his muted but nevertheless genuine welcome for this modest measure. I detected in his speech a great many references to what we know, or hope, will be a forthcoming Criminal Justice Bill. I am the first to sympathise with his very natural apprehension—and I must be careful with my metaphors here—that the legal child which he conceived is to be brought forth possibly in a form which may be slightly, or even materially, different from what he thought it might be. I do not propose to say any more about the Criminal Justice Bill; the noble and learned Lord must contain himself until it sees the light of day. I am aware that he has put down a Question for Written Answer, and that will be answered as expeditiously and as compendiously as possible, but I repeat that we must wait until the Bill sees the light of day before we can draw our conclusions.

One of the strange matters that a lawyer who practises in England—I was going to say "an English lawyer", but again I must be careful—finds is the curious distrust that the noble and learned Lord and his honourable friends in another place have for both the prosecuting authorities and the judiciary. When one peruses the Official Report of the proceedings as this Bill went through the other place one sees time after time this mistrust for what could happen if either sheriffs or procurators fiscal took the wrong view of their duty and used the powers which the Bill gives them in such a way that it would be onerous, if not actually unjust, to accused persons. That is something which I am bound to say I found rather surprising, and, if I may say so, the first point which the noble and learned Lord made as to the residuary requirement for money bail illustrates precisely this point. I would prefer to think that the courts will use this residuary discretion (if I may so call it) in a way which will, as it were, provide complete protection for accused persons, as is the whole design of the Bill, but which, on the other hand, will ensure the attendance at court of people who otherwise might not turn up if they did not have to deposit what will probably be very large sums of money to see that they do. This is something which I have no doubt we can go into in Committee, but at the moment, speaking for myself, I am satisfied that the provision is fair and at the same time reasonable.

Lord McCLUSKEY

My Lords, perhaps the noble Earl will allow me to say that I do not mistrust either the judges in Scotland or the prosecuting authorities in Scotland, but I am human enough to know that people make mistakes. It is possible—and there have been examples of it in the past—that a sheriff might get out of bed on the wrong side one morning and do something quite extraordinary. This kind of thing happens from time to time. The second point is that the judges, in construing the subsection to which I made reference, cannot look at Hansard to see the three cases which the noble Earl has in mind; they must look at the wording. I seek to achieve precisely the same object as the noble Earl, by tightening up the wording to ensure that the circumstances are, as he said in his speech, very special, and not, as the Bill says, simply special.

The Earl of MANSFIELD

My Lords, even I, as an honorary sheriff, made a mistake once, I believe, but it was put right on appeal, and there are full rights of appeal in this Bill which persons who find themselves in such unfortunate circumstances can invoke and pray in aid. As to the point which the noble and learned Lord made about my noble and learned friend the Lord Advocate, may I say that he is reserving his power for just such an occasion as the Criminal Justice Bill, when I, for one, shall be very glad of a 15-pounder alongside me.

The next matter which the noble and learned Lord raised was the maximum period of imprisonment which could be imposed by a court—that is, two years' imprisonment—if somebody (putting the matter colloquially) failed to turn up for their trial. The first thing I should like to say is that only when somebody fails to attend court are they liable to this rather more severe penalty. The second matter is that the court which sentences them has to be satisfied that they have failed to attend, in the words of the subsection, "without reasonable excuse"; so there is no question that they are not allowed to say a word in their defence, or that they will not be heard. They have to have failed to appear "without reasonable excuse". In other cases, of course, the maximum is far less; it is only three months. Let us realise that in ordinary circumstances a sheriff is entitled to impose a sentence of imprisonment of two years, so this is neither more nor less than the sheriff can customarily impose. Fourthly, and once more, my Lords, there is a provision that a person who has been so sentenced may appeal.

So, as I suggest, this is a provision to deal with somebody who quite obviously, by his absence from the court, has seriously interfered with the carriage of justice so far as he or she is concerned. For myself, I think it would be a thoroughly cumbersome way of going about things to make a new substantive offence, and to say, "You, John Bloggs, are now going to be charged with failing to attend '', as opposed, as it were, to wiping the slate clean at the conclusion of the trial, or whenever he happens to be apprehended. Again, that is a matter which we can come to in Committee if the noble and learned Lord thinks fit. The other matter to which the noble and learned Lord turned his attention was Saturday courts. I fully appreciate that, at first blush, if somebody were so foolish as to misbehave on a Friday night and Christmas or New Year fell on the Monday, they could languish in prison for no less than three days.

Lord MURRAY of GRAVESEND

My Lords, would the noble Earl give way at that point? Is it not the case that, in 1981, 1st January falls on a Thursday and that 2nd January is a Bank Holiday in Scotland, so it could be that he would be languishing in jail for four days?

The Earl of MANSFIELD

No, my Lords; Scottish courts sit on 2nd January, so 1981 is going to be all right. What I want to say is this, that the whole point of Clause 8 of this Bill—in other words, interim liberation (a splendid word that!) by the police—is designed for just this sort of occasion. That is to say, where it is not necessary, and indeed will not be desirable, for somebody to languish in prison, then it will be up to the police, in far wider circumstances than they have ever been empowered to do before, to admit somebody to bail. Because, as I said in my opening remarks, up till now the only conditions under which the police have been allowed to liberate persons who have been arrested are those in cases which would fall to be determined possibly by a district court; and if I illustrate that by saying that the maximum amount of money at stake in the case of theft is £20, noble Lords will see just how poor, if I may use that expression, just how puny, the jurisdiction of the district courts happens to be.

So, my Lords, I am not convinced at the moment that the noble and learned Lord's point that Clause 10 will of necessity cause people to be kept in prison for longer than they need is necessarily a good one. But I repeat what I said in my previous remarks, that if, for instance—and I am not going to be like the Solicitor-General for Scotland and illustrate what sort of commotion I have in mind—there is likely to be some sort of riot on a Saturday evening, there is no reason why the sheriff principal should not make prior arrangements for a court to sit on a Sunday (which has not been empowered before) so that, again, persons should not suffer incarceration longer than they have to without at any rate the opportunity to apply for bail.

Finally, the noble and learned Lord asks why we have not taken the opportunity in this particular Bill to further modify and indeed improve the reforming of Scottish law, and he mentioned the 110-day rule. My answer to that is that really the Government cannot win. On Thursday, when I was in your Lordships' House finishing off the Law Reform (Miscellaneous Provisions) (Scotland) Bill, the noble and learned Lord's noble and learned friend Lord Elwyn-Jones referred to my modest measure as "a rag bag". On the Tuesday, when I come forward with a small but nevertheless coherent and well-shaped package, I am then again criticised for not having gone further and turned it into a rag bag. But I can assure the noble and learned Lord that if he waits until our Criminal Justice Bill sees the light of day, then we can discuss all these matters fully, and no doubt at considerable length, and improve the law as best we can.

On Question, Bill read 2^a, and committed to a Committee of the Whole House.