BAIL ETC. (SCOTLAND) BILL

HL Deb 20 November 1979 vol 403 cc10-54

3.6 p.m.

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

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

Moved, That the House do now resolve itself into Committee.—(The Earl of Mansfield.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 1 [Release on conditions]:

Lord McCLUSKEY moved Amendment No. 1: Page 1, line 5, leave out ("After the commencement of this Act").

The noble and learned Lord said: This is a small drafting amendment, and I am suggesting that the words "After the commencement of this Act" should be left out. My reasons for so suggesting are that the words are unnecessary and possibly confusing, and, if that be so, then I think that they should be left out. At the Report stage or Third Reading in another place, the Solicitor-General for Scotland said that no statute should have unnecessary words. I entirely agree with that and I suggest that these words are completely unnecessary.

As your Lordships will see from Clause 13(2), that provides that the Secretary of State may make an order to bring this Act into force; and, of course, Clause 13 itself will come into force when the Royal Assent is received. The rest of the Act, including what is now Clause 1, may be brought into force on the same date or on later dates—possibly several different dates. So that, in one sense, there is no such thing as "the commencement of this Act". There is only the commencement of Section 1, Section 2 or Section 13—whatever it may be. Indeed, if one looks at Clause 12, one sees clearly that the Act is not to apply in relation to bail granted or release authorised before the coming into force of the relevant provision. So it would, on one view, be more logical if the opening words were simply, "After the commencement of this section". That would, at least, avoid some confusion arising from several different commencement dates. But my principal submission is that the words are quite unnecessary. In my view, they add nothing to the sense of the clause. Once Section 1 of the Act, as it will be, has been brought into operation by an order made under Section 13, it will be quite sufficient if what is then Section 1 simply begins with the words "It shall not be lawful to grant bail" et cetera. I beg to move.

The Earl of MANSFIELD

I have a certain sympathy with the noble and learned Lord, in that one always wants to keep statutes to their shortest, to make every word meaningful, as it were, and not to introduce unnecessary verbiage. I concede at once that this Bill would not fall if the words which form the subject of Amendment No. 1 were excluded, nor could I say that that would in any way make the Bill less able to be comprehensively understood by those who sought to read it.

I put the argument in this way, that although the lines are not strictly necessary it is valuable—as, indeed, the Renton Committee at one stage recommended—that there should be a clear statement, at the beginning of a clause such as this, as to the general purport of what follows. What follows in this instance—which is, in fact, an important matter—is that it stresses that the old system of bail or release based on the deposit of money, which has subsisted or obtained in Scotland for many years, is now to be abolished and that a new scheme, if I may so call it, is to be introduced in its stead. So I think that, in the particular circumstances, these few words are worth keeping and I do not think I can entirely agree with the noble and learned Lord in what he has submitted to your Lordships' Committee.

Finally, I think I should say that in the previous Government's Criminal Justice (Scotland) Bill a similar statement appeared, and I have no doubt, the Lord Advocate of the day having resigned, that the noble and learned Lord played a considerable part in the drafting of that measure, which never saw the light of day. Be that as it may, it might be appropriate if the noble and learned Lord were to reconsider his amendment.

Lord McCLUSKEY

If the noble Earl is constantly to refer to the terms of the Bill which was introduced by the Government of which I was a member, I shall have a difficult afternoon. But I am taking an independent line, in the sense that if I think that words are unnecessary or that a provision is wrong I shall endeavour to persuade the Committee of that. The noble Earl conceded that the phrase was unnecessary and thought that, perhaps, it was useful to make plain that we were moving over to a new system. I should have thought that it was perfectly plain from Clause 12. However, I have made my point. I have not succeeded in winning the hearts and minds of those on the Government Front Bench. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.10 p.m.

Lord McCLUSKEY moved Amendment No. 2: Page 1, line 5, leave out from ("Act") to end of line 7.

The noble and learned Lord said: This is an amendment of similar character, and again we are in the position that we are starting off with words which really are unnecessary. Again, there is a risk of some confusion. Of course, if these words were simply omitted the rest of the clause would require to be tidied up and therefore I should not be able in the circumstances to move that today. So I am asking the Government merely to consider the proposition.

The amendment here is to delete certain words. I suggest that these words are confusing in this sense. They say: … it shall not be lawful to grant bail or release for a pledge or deposit of money". Then, when one looks at the very next paragraph, one sees that one can, in fact, release on bail or grant bail in exactly those circumstances. So there is an immediate contradiction between these words which I seek to delete and paragraph (a) which follows them.

The second point is this. When one looks at paragraph (a), containing the word "only", so that it reads, release on bail may be granted only on conditions which … shall not include a pledge or deposit of money", one sees that the word "only" in line 8 does all that is necessary and the words which I seek to delete are plainly unnecessary. I would ask the noble Earl to consider whether at the Report stage he might delete those words, simply because they are unnecessary and possibly contradictory of paragraph (a). I beg to move.

The Earl of MANSFIELD

When I was musing—if that is the right word—upon the noble and learned Lord and his amendments, I rather wondered whether these two might have been pleaded in the alternative, but I gather that they are not. Much of what I said about the noble and learned Lord's previous amendment is right so far as this amendment is concerned. I am not going to repeat myself. I am certainly not going to repeat myself about the Criminal Justice (Scotland) Bill and I promise not to do so, although when that measure eventually sees the light of day in your Lordships' House I fear that we shall have to return to it. When I say that, I have no wish at all to twist the noble and learned Lord's tail.

But, seriously, the second part of the subsection declares, it shall not be lawful to grant bail or release for a pledge or deposit or money". One must go on to look down the clause to subsection (3), because there one sees that Clause 1(3) allows the deposit of money as a condition of release on bail in certain circumstances. But the point I am trying to make is that, even in those circumstances in Clause 1(3), release will principally be on the basis of conditions imposed under Clause 1(2). Those conditions can be imposed under Clause 1(2), and they are designed to achieve the aims set out in that subsection. So that the requirement to deposit money is what I might call an additional condition, rather than the basis upon which the accused is to be admitted to bail. In those circumstances, I suggest that Clause 1 hangs together rather better with these words left in it. I do not agree with the noble and learned Lord that the drafting would be better if it were without them. For that reason, I ask him to withdraw this amendment as well.

Lord McCLUSKEY

I certainly intend, with leave, to withdraw this amendment, but I do not think that the noble Earl has answered my point. There is something of a contradiction between these words and the provision of paragraph (a) and of subsection (3), because these words say that it shall not be lawful to do it, and paragraph (a) and subsection (3) make it lawful to do it in certain circumstances. So that there is an apparent contradiction, and because of the word "only" it is surely unnecessary to have these words at all. If one can delete words from the statute so much the better. The noble Earl does not argue that they are necessary, and if they are not necessary then perhaps they should not be there. However, it would not make sense to press this amendment at this stage, because the clause would need to be looked at again. I know that the noble Earl has not promised to look at it again, but he or his draftsman may look at it to see whether the subsection might be simplified or shortened by the deletion of these words. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.18 p.m.

Lord McCLUSKEY moved Amendment No. 3: Page 1, line 9, leave out ("special").

The noble and learned Lord said: This amendment ties in with amendment No. 6, but I shall have to speak to No. 6 separately. It is an Amendment to delete from line 9 the word "special", and I shall have something to say later about the circumstances in which a pledge or deposit of money may be required as a condition of the granting of bail. But if, as appears to be the case, this is a reference forward to the word "special" where it appears on page 2 in line 13, then, again, it seems to me to be quite unnecessary. It would read perfectly well if line 9 simply stated, except in the circumstances mentioned in subsection (3) below". So it is unnecessary to use it at all.

But, in any event, there is a slight confusion here. There are no such special circumstances mentioned in subsection (3) below. That subsection is really concerned with the special circumstances of the case—and I emphasise the words "of the case"—and that is a different concept. The circumstances which are envisaged here in Clause 1(1)(a) are the circumstances where the court or the Lord Advocate are satisfied of something, and that is a different concept. So that it would be a drafting improvement to delete the unnecessary word "special". It might be better still to delete from and including the word "except" in line 9 to "below" in line 10, and to substitute the words "except as allowed by subsection (3) below". Perhaps that might be considered. I think it would make the matter simpler and would be logically more consistent. In the meantime, I beg to move.

The Earl of MANSFIELD

This amendment is really a follower, if I may so call it, of the other two which the noble and learned Lord has moved and withdrawn. It is slightly stronger than the others because, as he points out, the word "special" in Clause 1(1)(a) quite obviously throws the reader forward, if I may so describe it, to Clause 1(3), whereas the word "special" in that subsection appears only in the penultimate line. I do not want to use the word "pernickety". However, I am not sure that the noble and learned Lord is not being rather careful with his construction of this clause. Equally, I see that he has a certain amount going for him in this amendment.

In the circumstances, what I shall do is to take it away and have another look at it. With the draftsmen sitting in the box, certainly I am not going to say for myself that I accept his amendment, but perhaps the noble and learned Lord will be content if I give that undertaking.

Lord McCLUSKEY

I shall certainly intimate my content with that and will hope that when we come to matters of substance, which we shall shortly do, the noble Earl the Minister will be equally forthcoming. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.22 p.m.

The Earl of MANSFIELD moved Amendment No. 4: Page 1, line 12, leave out from ("liberation") to ("this") in line 15 and insert ("may be granted by the police under section 18, 294, 295 or 296 of the 1975 Act as amended by sections 7 to 9 of").

The noble Earl said: I beg to move Amendment No. 4, standing in my name and that of my noble and learned friend Lord Mackay of Clashfern. This amendment seeks to eliminate a possible ambiguity in the Bill as it is drafted. No point of principle is involved. I can explain it if any noble Lord should wish me to do so, but in the meantime I beg to move.

Lord McCLUSKEY

Perhaps it is sufficient for me just to acknowledge the accuracy of what the noble Earl the Minister has said. I agree that this is an improvement. It does the kind of thing which I was trying to do in the earlier amendments, but which the Minister has rejected. It makes the Bill simpler. It improves it and makes it more intelligible. If the noble Earl the Minister were as consistent as I, then he would have accepted my earlier amendments.

Lord SIMON of GLAISDALE

I do not know whether it is convenient to ask this question at this stage or on the Question whether the clause stand part. The Renton Committee on the preparation of legislation recommended that amendments should be made by textual amendment wherever possible, and that is done, I notice, in all the other amending provisions of the Bill. I wondered whether in this case it was found to be impossible to amend except by non-textual amendment.

The Earl of MANSFIELD

My understanding is that this was indeed the only way that one could do it.

On Question, amendment agreed to.

3.26 p.m.

Lord McCLUSKEY moved Amendment No. 5: Page 1, line 18, leave out ("necessary") and insert ("appropriate").

The noble and learned Lord said: I beg to move Amendment No. 5 which raises a matter of a little more substance. The word "necessary", the one appearing in the Bill at line 18 on page 1, sets, in my view, far too high a standard. One can demonstrate that by looking at paragraph (b) of subsection (2) of Clause 1. If the court has to—and the word in the Bill is "shall"—impose conditions which are necessary to secure that the accused does not commit an offence while on bail, I ask, how on earth does the court do that except by locking him up? Supposing that he is an habitual drunkard or a recidivist, nothing at all can secure that he remains out of trouble once he has been released on bail. It might be for months that he is on bail. How does the court do what is necessary to secure that he remains out of trouble during that period? How do you secure that he does not commit an unrelated, non-cognate offence—for example, a driving offence—when he is out on bail? You simply cannot do it. The only way to prevent him from committing another offence is to lock him up, and even then he might commit an offence in prison.

The correct way to do it is to insert the word "appropriate". I am driven to suggest that the word "secure" is perhaps too strong, for exactly the same reasons, and that the expression "necessary to secure" might be replaced by the expression "appropriate, with a view to ensuring". Therefore, I ask the Government to consider this amendment. It is merely an attempt to make the Act work. I think that the use of this phrase, particularly the use of the word "necessary", requires the court and the Lord Advocate to do something that it is impossible to do. For that reason, the Government should be prepared to reconsider it and to adopt a suggestion of the kind which I have made. In the meantime I beg to move.

The Earl of MANSFIELD

I had rather thought that the noble and learned Lord was going to speak to Amendments Nos. 5 and 6 together, but he has chosen not to do so—and that is his choice. If Amendment No. 6 were successful, then I fully agree that the word "necessary" would need to be replaced, otherwise it would be tautologous. However, if one takes the meaning of the word "necessary" in this particular circumstance, it is, I suggest, by definition, a phrase which in effect means "the only appropriate course". If one wishes to use the word "appropriate", it puts it—to my mind, at any rate—on a lower plane of necessity than what is written into this clause.

The whole object of this provision is to try to get away from the old methods under which accused people were liberated, pending their trial. It was an extraordinary system to those uninitiated in Scottish law that, in these circumstances, people had to find sums of hard cash before they could be set free. The Bill sweeps all that away, and I have no doubt that the noble and learned Lord will agree that that should be done. Indeed, he goes further than he did—and, indeed, his honourable friends did in the other place—on Second Reading by saying that it is a good thing and by conceiving that there may be occasions upon which it will be proper for the old system to be retained, in the sense that there may be occasions upon which somebody will have to find a sum of money before he can he admitted to bail.

The circumstances, then, are set out. I should have thought that subsection (2) of Clause 1 is felicitously worded as it stands and that it would be taking away quite unnecessarily from the ordinary meaning of the word "necessary" to read into it what the noble and learned Lord has read into it. I am afraid that I do not share his misapprehensions.

Lord McCLUSKEY

By thinking that I was going to take Amendment No. 6 with Amendment No. 5, the noble Earl reveals that he did not understand what Amendment No. 5 was about. The amendments are quite unconnected. Amendment No. 5 is concerned with the conditions which the court or the Lord Advocate is to impose. There is no choice; they have to impose conditions such as they consider necessary to secure a certain thing, and that applies whether the conditions are money conditions or conditions about the surrender of a passport or reporting at a police station or whatever. It is impossible for the court to do what is necessary to secure that a person will not commit an offence when he is out on bail. The court can only do what it can reasonably do. They can decide that certain conditions are appropriate and that they are the best ones, but they cannot ensure that there will be no commission of an offence. So I ask the Minister to consider this again and we will deal with Amendment No. 6 when we come to it.

The Earl of MANSFIELD

I apologise if the impression that I have given is that the noble and learned Lord thinks that I do not understand his amendment. Let us look at it again. What does Clause 1(2)(a) do? It sets out the aims of bail. Of course, in an imperfect world one can never guarantee that the person who is admitted to bail will not do something which will amount to another offence, or commit another offence. So one takes a risk. Therefore, what the subsection is saying is, first, that the court makes the decision to grant bail, to liberate him. Then it asks, "What do we have to do? What conditions must we impose in order to achieve the desirable factors which are set out at (a), (b), (c), and (d)?" If the subsection had been drafted to the effect that the Lord Advocate considers, in his discretion, that it is necessary—or something like that—then I fully agree that there would be surplusage. But it does not say that; it merely says that the Lord Advocate considers it necessary to secure these things. Surely this is a perfectly reasonable way of drafting it, and, if I may say so, I think that the noble and learned Lord is making rather heavy weather of it.

Lord McCLUSKEY

I should like to get on to the next amendment. I do not think that I am making heavy weather of it, and I think if the Minister will look at what I have said he will see that there is some substance in what I have suggested; but in the meantime I will not press it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.32 p.m.

Lord McCLUSKEY moved Amendment No. 6: Page 2, line 13, leave out from ("is") to end of line 14 and insert ("the only course appropriate to the special circumstances of the case, and the accused agrees to the requirement").

The noble and learned Lord said: We come now to an amendment of greater importance. The whole purpose of this Part of the Bill is to abolish, except in very special circumstances, the old system of money bail which the Minister described to the House at the Second Reading stage of this Bill. We are all agreed that for the purposes of this Bill there is some merit in retaining for special circumstances the possibility of money bail, but we are all agreed as well that we want to avoid any risk that the old system of money bail will substantially survive. The only purpose of this amendment is to try to help the Government to make sure that it is made plain to the court that money bail is to be confined to very special circumstances indeed; in other words, the circumstances of last resort. That is why I have suggested the words "the only course appropriate" as being the words which ought to be put into the Bill so as to give the court the necessary guidance.

The second part of the amendment requires the agreement of the accused to the requirement of money bail. I mention that because in another place when the Government were asked to specify the circumstances in which they thought it might be desirable to retain money bail—the whole purpose of the Bill being to abolish money bail—they gave the examples of a local government corruption case, of a company fraud, of illegal fishing by foreigners and of tax frauds or tax dodging by people who live abroad. I should have thought that in all these cases the accused would in fact agree to the provision of money bail, and accordingly if we have both parts of this amendment with the words "the only course appropriate" and the requirement of the accused's agreement, then the court would not be at any risk of extending money bail beyond what the Government have in mind.

At Second Reading the noble Earl suggested that we on this side of the House did not trust the judges. I certainly fully trust the judges, but they can make mistakes and there have been instances—and I could give some—where Parliament and the general public have subsequently come to discover that a statute which was passed meant something different from what they thought it meant when it was passed and that was because the court had interpreted it in a particular way. So if we want to make sure that the court does what Parliament wants it to do, then we must make the wording absolutely clear. We can do it with this kind of amendment, and would invite the Minister to accept this amendment more sympathetically than the others. I beg to move.

The Earl of MANSFIELD

As I understand the effect of Amendment No. 6 it would mean in fact that a court (or indeed the Lord Advocate) would be prevented from requiring a deposit of money unless it was satisfied that this was the only course appropriate to the special circumstances of the case and, moreover, the accused person agreed to this requirement. It is not either/or; both conditions would have to he fulfilled. What, one asks oneself, would happen if the accused refused to agree? Under the amendment the accused could withhold his consent and therefore by withholding his consent he could prevent the court from requiring a deposit of money as a condition of bail.

Then one asks oneself, if the court considered, as in the examples produced by the noble and learned Lord and which have been produced to both Houses at various moments, that it could not safely release the accused without such a deposit, presumably he would continue to be held in custody. I am sure that the noble and learned Lord would not want to write into this Bill a requirement that a deposit of money to be taken from the accused could be at his election. Putting it in another way, if he refused this requirement he would still be allowed to go free. So if one looks at it in that way, it seems to me that the position of an accused person who refused his consent in relation to the second part of the amendment would be the same as that of somebody who, for instance, merely failed to produce the money, as the Bill is at present drafted. In either case the accused would be held in custody until he complied with the conditions of bail and produced the money or until he successfully appealed against the requirement, or until his trial came up, or, I suppose, unless and until he could persuade the court to vary the conditions. All those four results could flow from that action. In those circumstances the amendment really does not add very much to tile clause. I suggest that the practical effect on the accused is the same. If he refused to find the money the court would not allow him to go, so what is the point of writing it in?

I come to the other part of the noble and learned Lord's amendment—that is to say, the provision that the court or the Lord Advocate would have to be satisfied that it was the only course appropriate to the special circumstances of the case. I think, if I may say so, that the present wording achieves precisely that; it makes it into a matter of discretion. I do not think there is very much between us so far as that is concerned. If one considers what a court is likely to do in the circumstances of some international crook, it is likely to impose a set of conditions of which the deposit of money will be only one. The first condition will obviously be that the said John Smith, or whatever he is called, will turn up at the appointed time for trial. The deposit of money would be, I suggest, the very last condition to be imposed, because it would have to be deemed to be necessary. If one takes the example which have given, one asks what would happen if he then refused to agree to the last condition. The answer is that he would not be liberated, because it would obviously be a serious case. In those circumstances, I can only suggest that the noble and learned Lord reconsiders the amendment, because in the circumstances I have described it will not do what he wants to do, and it certainly would not be something which would commend itself to any court.

Lord McCLUSKEY

Let us take the instance where the accused is told that he must find a sum of money as one of the conditions—say, £20,000. If the option were open to him and he refused, if one takes the Bill as it stands what he would do is that he would not find the £20,000 and therefore the money will not be lodged as bail money. What will they do with him then? He will not have satisfied the conditions and he will not be granted bail, so he will be kept in custody. It seems to me that if the court wants to go through the motions of allowing bail, as courts sometimes do, and fixes a sum of money which the accused cannot possibly find or will not find, it will do that and the accused will be kept in custody, and therefore it seems to me to be logical to require his agreement.

If one thinks of the kind of case we are talking about—the foreign fishing vessel—if the court says the bail ought to be £5,000 or £10,000 and the alternative is that one does not get out at all, the accused is liable to agree to that; the agreement would be forthcoming. One would have thought that the same would apply in the case of a tax fraud or a big company fraud. It cannot be a proper purpose of this Bill to enable the court to fix a sum of bail so large that the accused cannot find it. The accused's agreement is at least an indication that he can find the sum of money which the court proposes to fix, so it does appear logical to require his agreement.

As to the other part, there is nothing between the Government and myself as regards the intention. The difference arises because the Government are declining to give the court special direction in the words of the statute which may be necessary to avoid a recurrence of all the old-fashioned money bail. It can be done by tightening up the words of the statute in the way I have suggested. So I would invite the noble Lord to be more sympathetic towards this amendment.

The Earl of MANSFIELD

I think the noble and learned Lord is descending a little from his previously high plateau of logic. In the first place, I would remind him that the average bail demanded in Scottish courts is between £10 and £15, so we are jumping quite considerably into the £20,000 range.

Lord McCLUSKEY

Surely that does not apply to tax frauds and company frauds and foreign fishing vessels.

The Earl of MANSFIELD

No, of course it does not, but those are people who are not going to be worried by this question of consent. The owner of a foreign trawler wants to get on with his trawling, so the last thing he wants to do is to cause trouble in a foreign court. If the noble and learned Lord returns to the point that the legislature has always to be on guard against a court acting unreasonably, in a case where for some reason a court is going to make a special condition of the granting of bail the deposit of a quite outrageous sum of £20,000 which the unfortunate accused is not going to be in a position to find, so he will, against the justice of the matter in so far as his liberation before trial is concerned, be incarcerated in prison, the matter is perfectly simple. If this condition is set and the accused is aggrieved by it then he can appeal. Surely the noble and learned Lord would not go so far as to say that whatever unreasonable and unconscionable attitude could be taken by a sheriff or judge sitting alone such would be perpetuated by an appeal court. I suppose it could be, but there is that safety net, and I commend it to the noble and learned Lord.

If we take the example of the person we are thinking about, who is not going to turn up or is likely not to surrender to his bail at the appropriate moment, the court says to him, in effect, "You may have bail but you must turn up for trial and you must deposit £20,000." The accused then says "No, I will not; I am not going to". Does the court say "Very well, off you go"? It is really not in the realms of possibility. Some sanction must be made in those circumstances, and the fact of the matter is that if he refuses to comply with the condition there are only two courses open—either he remains in prison, or he appeals or persuades the court. For instance, if the court has mistakenly taken a much different view of his particular circumstances to that which it should have taken, he can make a later application to the court to vary the terms: I have no doubt that a court would entertain such an application. I really think that is as far as I can take it. The amendment proposed by the noble and learned Lord would really turn the whole thing on its head by giving the accused in such circumstances an election as to whether he wanted to deposit his bail money or not.

Lord McCLUSKEY

I shall not press this amendment at this stage, but the noble Lord is quite wrong to cite to me the average amount of bail, which has nothing to do with the kind of case we are talking about. Even when the average amount of bail in Scotland was £14 the Thomson Committee found that 27 per cent, of those granted bail were unable to find the money immediately and 2 per cent. did not find the money at all; the remainder found the money after periods ranging from 1 to 116 days.

The Earl of MANSFIELD

I suppose one could say that in Scotland crime does not pay.

Lord McCLUSKEY

But we are not talking about crime in general; we are talking about tax frauds, illegal fishing by foreign vessels and company frauds. I would invite the Minister to look again at what has been said today and consider whether he should give better guidance to the courts. It is necessary to ensure that the court is not given a loophole to enable it to continue the system of money bail to which it has become accustomed over a long period of years. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

The CHAIRMAN of COMMITTEES

Amendment No. 7. I must point out that if Amendment No. 7 is agreed to I cannot call Amendments Nos. 8 and 9.

Clause 2 [Provisions supplementary to s. 1]:

3.50 p.m.

The LORD ADVOCATE (Lord Mackay of Clashfern) moved Amendment No. 7:

Page 2, line 37 leave out from ("direct)") to end of line 7 on page 3 and insert ("which, subject to subsection (2) below, shall be his proper domicile of citation. (2) The court may on application in writing by the accused while he is on bail alter the address specified in the order granting bail, and this new address shall, as from such date as the court may direct, become his proper domicile of citation; and the court shall notify the accused of its decision on any application under this subsection. (3) In this section "proper domicile of citation" means the address at which the accused may be cited to appear at any diet relating to the offence with which he is charged or an offence charged in the same proceedings as that offence or to which any other intimation or document may be sent; and any citation at or the sending of an intimation or document to the proper domicile of citation shall be presumed to have been duly carried out.").

The noble and learned Lord said: I crave the indulgence of noble Lords. I beg to move Amendment No. 7 in the name of my noble friend Lord Mansfield and myself. This amendment is designed to improve the administration of bail so far as the citing of the accused is concerned. The domicile of citation is the address at which the accused can be sent documents or notice to appear for trial and it is essential that the court should know with certainty the current address selected by the accused and approved by the court. However, since many people change their homes while on bail, it is essential also that an element of flexibility is retained without sacrificing any degree of certainty, to which I have referred. The amendment seeks to achieve those twin objectives in respect of which the present arrangements in the Bill for change of address are insufficiently explicit.

As presently worded, Clause 2(2) of the Bill obliges the accused to inform the court and the procurator fiscal of any change in his address for purposes of citation. It would clearly be undesirable—particularly in the larger offices—for the accused to attempt to fulfil this obligation by telephone; but even if he was required to inform the court in writing, as the clause is presently worded an accused who failed to appear for trial might allege that he had given intimation of a change of address, and the matter could remain unresolved. In addition, as presently worded, the court may not know with certainty what is the accused's current address for citation purposes.

Much of the Bill is designed to avoid the inconvenience and disruption to the public and the courts which would be caused if the accused failed to appear, and these arrangements for changes of address should be as watertight as possible. The Thomson Committee recommended in its Second Report that the accused should have to apply to the court for authority to change his domicile of citation. Clause 2 already provides that the domicile of citation shall be the accused's normal place of residence unless the court otherwise directs. It is therefore appropriate that the accused should not be entitled to change his domicile of citation without the court's agreement.

The proposed amendment therefore provides that the accused must apply to the court in writing if he wishes to change his domicile of citation. The change, however, will not become effective until the court has considered the application and agreed to the change requested. In addition, the court will direct the date from which the change is to have effect and, in determining the choice of date, the court will no doubt have regard to the period required to notify the accused of the decision of the court. Thus, there will be achieved the two elements to which I earlier referred; namely, the certain knowledge of the court at any given time of the domicile of citation and the element of flexibility to take account of changing circumstances.

The amended subsection (3) which we are proposing defines the expression "proper domicile of citation" and determines the effect of sending any citation, document or intimation to such a domicile of citation. In our submission, the amendment will obviate a good deal of potential difficulties in our courts and for the public. It will simplify adminstration by making it more certain that the accused will receive necessary documents and notice that he is required for trial. I commend the amendment to the Committee. I beg to move.

Lord McCLUSKEY

Before I turn to the substance of the amendment, I am delighted to welcome the maiden speech by the noble and learned Lord, Lord Mackay of Clashfern, the Lord Advocate. When I drew attention on Second Reading to the fact that he had not yet addressed the House I did not believe that we would flush him out quite so soon. But I believe that I have helped to do your Lordships a service. The noble and learned Lord, despite his apparent youth, is in fact my near contemporary and is held in the highest regard in the legal profession in Scotland. If he feels that the Committee stage of this modest Bill is perhaps not the centre stage on which to make his debut, I none the less offer him the comfort that I made my own maiden speech at dead of night at the Second Reading of the Electricity (Financial Provisions) (Scotland) Bill before a thinly attended but very warmly welcoming House. We look forward to his further contributions in future—and trust that he will make many of them from the very position in which I now stand.

Turning to the amendment itself, I believe that it is a considerable improvement. It rather dashes the cup away from my lips because it sweeps away Amendments Nos. 8 and 9 which were modestly designed to achieve the same purpose. However, the amendment achieves all that I had in mind and I am quite content, therefore, that my amendments should fall. This is the only question that comes to mind. The whole burden of the new clause is to enable the accused to intimate a change of address to the court. The provision which the noble and learned Lord has moved requires the court to consider that matter and to decide whether it will have his address changed. Then the court has to notify him—but to which address will the court notify the decision?

Lord MACKAY of CLASHFERN

I should begin by thanking the noble and learned Lord for the very kind remarks that he has made about what I said. I certainly hope that I shall at least have some opportunity of speaking from my present position rather than his. I suggest that the address to which the intimation would be sent would be the address which the accused had originally used. What is important is that the court should have an address which is the address which founds the basis of citation. The court can fix the date from which the new address will take effect, and presumably the new address will not take effect until time has been allowed for the intimation to reach the accused person. That will enable the accused to give notice in advance if he has the intention of changing his address. He should give notice in sufficient time to have the whole business completed before he actually moves. That is the purpose that we have in mind. We are, of course, grateful to the noble and learned Lord for the amendments which he had proposed and which have helped us to reach this conclusion superseding his.

On Question, amendment agreed to.

[Amendments Nos. 8 and 9 not moved.]

Clause 2, as amended, agreed to.

Clause 3 [Breach of conditions]:

4 p.m.

Lord McCLUSKEY moved Amendment No. 10: Page 3, line 29, leave out ("2 years") and insert ("6 months").

The noble and learned Lord said: I beg to move Amendment No. 10. This is the most important amendment that I shall propose in the list of amendments today. I direct your Lordships' attention to Clause 3. Clause 3 prescribes the penalties which may be imposed if a person, having been granted bail, fails without reasonable excuse to appear at a diet which has been fixed for the trial; or any other diet in connection with the case, or to comply with any other condition.

When we come to line 29, we find ourselves in subsection (3) dealing with the penalties that may be imposed when an accused person has been granted hail and fails to appear at the time and place appointed for any diet of which he has been given due notice. Your Lordships will see that in those circumstances the Bill enables the court to impose a fine and a sentence of imprisonment for a period not exceeding two years. In my view the period of two years is quite excessive for a number of reasons. First, it would enable a sheriff who was sitting in a solemn case to impose a total of four years' imprisonment. At present, the sheriff's maximum is two years. He would be able, in a particular case, to impose two years' imprisonment for the offence itself and two years for the failure to comply with the condition of bail, to wit the turning up at the court for the diet. So, he could impose a maximum of four years' imprisonment and that is a dramatic step forward from the present position. At present, I believe that there is no such power of imprisonment and I hope that the Minister will be able to confirm that.

If one looks at paragraph 11.20 of the Thomson Committee Report one sees that the committee recommended that any offence should be punishable by imprisonment for a period not exceeding six months, or by a fine. What the Government have done is to put in two years and a fine so that there is a considerable step forward from what the Thomson Committee unanimously recommended. I have looked at the proceedings in another place and the Minister—I think that it was the honourable gentleman Mr. Rifkind—when speaking on this matter, said that one might have a rather serious case which amounted in effect to an attempt by the accused to defeat the ends of justice. In other words, he does not turn up on the morning of his trial in the hope that in that way evidence will be lost, witnesses will die or not turn up the next time, or whatever. If in fact what the accused man does is an attempt to defeat the ends of justice, then it ought to be charged as such. It surely can be, and the Minister will no doubt be aware of cases in Scotland which indicate that a charge of that kind is perfectly competent at common law. If it were so charged that all the facts can be investigated without there being any change in the normal onus, the onus of proof would be upon the Crown. But under the Bill as it stands, I believe that the onus is on the accused because he is the one who has to prove the reasonable excuse. One sees that at line 23 on page 3 of the Bill, Clause 3(3).

Therefore, for those reasons—and particularly because one does not want lightly to extend the powers of the sheriff in this dramatic way—I invite the Minister to reconsider this provision. One can hardly conceive of circumstances in which it would be necessary for the court to impose a period of imprisonment of more than six months. Certainly the Thomson Committee did not regard that as being at all necessary. Your Lordships may also know that in that committee's report there is a specific provision to increase the sentencing power of the sheriff from two to three years. That is a matter of some controversy and, no doubt, we shall have to look at a provision of that kind in the Government's forthcoming Criminal Justice Bill. That would be the proper occasion on which to look at it. It should not be done, as it were, by the back door; by giving the sheriff this power in the special circumstances prevailing here. There is no support for it in the Thomson Report and there is no need for it in this Bill. I seriously invite the Government not to press this matter. I shall listen carefully to what answer the Minister gives in order to determine whether or not I should seek to divide the Committee on this or on another occasion in relation to this provision. I beg to move.

The Earl of MANSFIELD

First, I should like to add my words of congratulation to my noble and learned friend Lord Mackay of Clashfern on, if one may so call it, his maiden speech. No doubt he may have expected to make such a speech on what I might call a full parliamentary occasion, with the Galleries crammed and the Benches behind him also full. Nevertheless, as a lawyer, perhaps it is more appropriate that he should make his first contribution in the parliamentary workhouse. I have a faint feeling of resentment that no sooner do the two Scottish advocates get together than all becomes lovey-dovey and the noble and learned Lord, Lord McCluskey, immediately falls backwards and says, "Oh, I shall not move my amendments, I am very content with yours". However, when I get to my feet we find ourselves again in realms of contention; I am afraid that that is how it has to be.

I have listened again to the eloquence of the noble and learned Lord, Lord McCluskey. I say this quite sincerely: once more I find myself in disagreement with him. The first matter on which I take issue with him is that this Bill will create a new offence. It will be a matter which will be entirely consequential on whatever may or may not happen at a trial. That is a very important point. It will require to be proved in the ordinary way, according to our criminal rules, and the judge—whether he be a sheriff or anyone else—will have to apply himself de novo to any question of penalty. So I suggest to the noble and learned Lord that, if at the end of the day the sheriff—if it is he who is taking the case—reaches the conclusion that the proper sentence for the substantive offence is two years' imprisonment and then the failure of the accused, to turn up at his trial is so gross that he has, in carrying out of his public duty, to impose two years for that offence, this will not be four years so much as two plus two. I say that not as a debating point, because the noble and learned Lord can add just as well as I can. But these are all subject to appeal. A reviewing court may well be able to say, "For the original offence two years was justified, but it certainly was not proper merely because this man failed to answer his bail to give him two years and, therefore, we shall allow the appeal accordingly".

Disagreeing once more with the noble and learned Lord, I do not think that this is an opportunity to give savage sheriffs who would otherwise not be allowed to give vent to such instincts carte blanche in the matter of sentence. The sentence in respect of failure to appear may even be the only sentence which can be imposed if, in certain circumstances, no trial can take place. For instance, I can illustrate it in this way; because an accused may fail to surrender to his bail witnesses may die and, bearing in mind the rules of corroboration, the case may well not be provable against him. He may never be able to be tried or, if he is, he may inevitably achieve an acquittal simply and solely because he has in fact failed to turn up. In those circumstances—and this is a matter upon which we place particular reliance—if the seriousness of the matter is sufficient, it is only right that he should be liable to be sentenced to a substantial period of imprisonment.

The matter does not end there. It may well be that accused people will balance out the likely consequences of appearing to stand trial as against the possible consequences of not doing so. If the potential penalties faced by an accused are grave—if this amendment is accepted—he may well choose to do six months for not turning up rather than perhaps six years for being so foolish as to surrender to his bail. I simply put that forward. I appreciate that in such cases he would have to be sent for sentence. Quite apart from that, if an accused fails to appear, he may cause very considerable inconvenience to the witnesses, who in, say, a complicated case of fraud, may number tens. He would put the community to a great deal of inconvenience and expense. I believe that that should be weighed in the balance. I do not place a great deal of stress on it, but it is worth mentioning.

Lord MACKIE of BENSHIE

As a layman, I should like to ask a question. Did I understand the noble Earl to say that if, because of skipping bail, the accused failed to turn up and there was no trial, one should be able to impose a larger sentence because he would not be tried? Is that logical?

The Earl if MANSFIELD

No, quite the reverse. I was trying to explain to your Lordships that an accused man facing a grave charge might well choose to do six months for having been in breach of his bail rather than do whatever he might be sentenced to if he did turn up. That is what I am saying. No judge would say, "Because the trial against you is vitiated, I shall give you an extra long sentence". He would take all the circumstances of the case into account, including the gravity of the accused's conduct, and sentence him accordingly. I hope that that is now plain to the noble Lord, Lord Mackie of Benshie.

I want to remind your Lordships that the two-year penalty is a maximum and not a standard. Therefore, I quite concede that in certain circumstances two years could very well be excessive. But, in a way which is certainly within my personal philosophy, though I do not think it is within the philosophy of the noble and learned Lord—and I do not say this to him rudely—I believe that the courts should be given adequate powers and the maximum discretion; for I believe that in the main they will not impose onerous or savage sentences, and if they do, such sentences can be upset on appeal. As I have tried to say, there may be cases where the fact of the accused not having turned up to stand his trial can, in fact, result in a very distinct public miscarriage of justice. I am quite sure that the courts will take a reasonable discretionary view of this power which we are giving them.

The next matter which I wish to raise is this. The courts frequently review bail during the course of a long case, as it goes along. I hope that the noble and learned Lord is with me. After the first sitting, as the subsequent sittings succeed each other it is in the mind of the judge always to withdraw bail at a later, or at a late stage. In a serious case which is going against an accused man, the temptation to him to just not turn up at the last stage will become more and more overwhelming. The temptation to the judge, if that is the right word, or the inclination of the judge as the case wears on to, as it were, put him inside, to make sure that that does not happen, will get stronger and stronger.

What I would suggest to the noble and learned Lord is that as this clause is at present drafted there will not be any more temptation on the part of the accused to abscond, and there will not be any further inclination on the part of the judge not to continue to give him bail, because if the accused does not turn up the court has its remedy which, in my submission, is a fair and proper one in the circumstances. So that it is in those circumstances—because no absconding may have entered an accused's mind as the trial wears on; he may be inclined, however badly it was going, to stay and face the music—in the accused's interest that the judge has in the back of his mind the penalty if he does not turn up at the concluding stages. So I would suggest to the noble and learned Lord that the six months which his amendment lays down would be quite inadequate for this purpose.

I want finally to emphasise that the penalty of two years relates only to failure to appear at a diet under solemn proceedings, so that any other breach of condition does not attract this penalty. It is important to emphasise that. The penalties for any other breach of conditions of bail—and those include failure to appear under summary conditions—are very much less. I should have used the word "penultimately" in relation to that particular remark to your Lordships, because my final point is that the accused has a defence. He has the defence of reasonable excuse. Obviously there is no question of any period of imprisonment, let alone one of two years, being imposed upon someone who has a genuine reason for having failed to appear. I emphasise the use of the word "genuine" reason. I do not even say a good reason. If it is a genuine reason it is impossible to visualise circumstances in which a court would take too grave a view of his conduct. We are here talking about the person who fails to attend his trial without any reasonable excuse.

I think that that is as far as I can take the matter. If the noble and learned Lord is asking why we do not charge the man with contempt of court or perverting the course of justice or something like that, may I say that philosophically I regard that as most untidy. At a time when we are really trying to make the law of Scotland far more cohesive it is surely much better that this should be set out in statute form. Here we have a new and, as I suggest, a much more streamlined and satisfactory bail system which, may I say, the English may well want to copy pretty soon. Let us keep it in its neat and tidy state and say in effect to an accused man, "We are going to admit you to bail before your trial under these conditions. If you abuse them, these are the penalties which can be imposed on you in certain circumstances".

4.14 p.m.

Lord LLOYD of KILGERRAN

It is with a deep sense of humility and indeed anxiety that I venture to intervene in a debate on this matter of bail in Scotland. But as I look round this side of the House find that I am the only person present who has the honour still to be one of Her Majesty's counsel. Therefore, it might be considered discourteous of me if I did not join at least in part with the welcome and congratulations that have been given to the noble and learned Lord, Lord Mackay of Clashfern, on his maiden speech, and to express the hope that we shall hear him much more frequently in his House.

The noble and learned Lord, Lord McCluskey, went on further to deal with questions of the position from which the noble and learned Lord, Lord Mackay, might be speaking in the future. Let me say at once from these Benches that if he finds some anxiety in speaking in future from where the noble and learned Lord, Lord McCluskey, is speaking, then he has ample room on these Benches from which he can be heard and his speeches be enjoyed in this House. It came to my mind, as a Celt—and I am glad to see that the noble Lord, Lord Cledwyn-Hughes, a most distinguished lawyer and a distinguished Member of the other House, is in his place—as the noble Earl was addressing the Committee that there was a deep sense of harshness, even brutality, in his address in regard to the treatment of these offenders. Therefore, without dealing fully with these arguments, I should like to join with the noble and learned Lord, Lord McCluskey, to say that it was quite improper almost to include this kind of punishment in a Bill of this kind, and that it would be more appropriate for it to be enjoined in any amendment of the Criminal Justice Bill. Therefore, I should like personally strongly to support the noble and learned Lord, Lord McCluskey, in his submissions to your Lordships.

Lord McCLUSKEY

I am not in the least surprised that the Government's proposal in this connection has provoked a reaction from the Liberal Benches. Indeed, I am not surprised that the noble Lord, Lord Mackie of Benshie, was moved to intervene at the astonishing argument put forward by the noble Earl. The noble Lord, Lord Mackie, grasped that argument in its substance absolutely. What the noble Earl was saying was, "We might not he able to convict the accused of the crime with which he was originally charged, and therefore this may be the only penalty available. So we had better make it a nice substantial penalty so that we can punish him for being acquitted on the other charge". That is the essence of what the noble Earl said.

Let us suppose—and I have known this to happen because I have a substantial criminal experience in Scotland (I should say, in the courts, as a practitioner)—that the accused as the trial wears on day after day finds that his chances of acquittal are exceeding small and decides that he will not turn up for the verdict or for the last day of the trial. There is no shadow of doubt that that could properly be charged as an attempt by him to defeat the ends of justice. That is the crime he will have committed. Your Lordships, I have no doubt, can take the advice of the Lord Advocate on that if necessary. He could be charged with attempting to defeat the ends of justice. The penalty for that, it being a common law crime, is not restricted to two years but may be more if the circumstances warrant it. So the proper charge is that charge and not this statutory charge which puts the onus upon the accused person to establish reasonable cause for not being there.

I do not suggest—and I have never suggested to the noble Earl or the Committee—that the man in these circumstances should be charged with contempt of court. I do not think that that is a good idea. But the crime of attempting to defeat the ends of justice is a perfectly sensible crime in the Scottish context. The noble Earl will no doubt take advice on that and on Scottish law in relation to that matter.

There are other points, because this is a matter of considerable importance. Where on earth did the noble Earl get his two years from? It was not in the Thomson Report. It was not in the previous Government's Bill, which restricted the penalty to three months. Where did the idea of two years come from? Next, does the noble Earl realise that the Scottish male prison population is the highest per capita in the whole of Western Europe? Is this an attempt to increase the prison population?

Does he agree that the sheriff is given the power to impose two years plus two years, which to the accused person means four years—whether it is two plus two or not—and is he able to inform the Committee as to what the position is in England at the moment? What is the sentence that would be imposed on any person if the accused failed to surrender to his bail at a trial in England? I invite the Committee to look very carefully at the arguments that have been put forward by the noble Earl. I regard what he put as a bad argument—in fact I think all the arguments are very bad—and in my view the Committee should not approve the measure without better arguments being put forward.

The Earl of MANSFIELD

I wish to comment first on what the noble Lord, Lord Lloyd of Kilgerran, regaled the Committee with. We are talking, in the main, not about offenders but about people who are released pending their trial and what we are going to do with them as a community if they fail to turn up. This is the measure which the noble and learned Lord, Lord McCluskey, has seen fit to try to amend. I do not say that rudely, but that is the point of the amendment: to reduce the sentence which can be imposed on someone who fails to turn up at his trial from two years to six months.

What I have tried to illustrate to the Committee is that by so behaving someone may in certain circumstances—such as culpable homicide, rape, a really serious assault or a really serious case of housebreaking—feel that he would prefer not to face the court proceedings. In those circumstances it is a matter of deciding what the community is to do If a case is sufficiently serious, then a court will not grant bail if it thinks the person will not turn up for his trial. It is as simple as that. If, like me—speaking personally for a moment—one is a passionate believer that people should not go to prison at all except in the most dire circumstances, and that they certainly should not go to prison pending their trial if there is any possibility that they can be admitted to bail, then one has to try to provide a framework so that they can, even in serious situations, be admitted to bail if it is at all possible, which is precisely the opposite of what Lord McCluskey was saying. The idea is to reduce the prison population in Scotland, which I know is the highest in Europe—and I spoke until the general election as the president of SACRO. The idea is to reduce it, but the fact remains that society must have some sanction concerning bail if people involved in these serious crimes refused to turn up.

Lord McCluskey asks what happens in England. In England they do it in an entirely different way, in a monetary way, by the imposition of very large sums of money by way of recognisance and sureties, and it is not—I say this without being disloyal to the profession in which I very much enjoyed working for years, and the system of law—a system which works all that well; it creaks. Nevertheless, the English law has its sanctions and we in Scotland must have our own.

I do not think I can take the argument very much further. It is only in certain circumstances that this penalty will he imposed, and I have enumerated them. I suggest that it will be within the discretion of judges or sheriffs, who are well able to carry out their public duty; that if they err then it will be open to appeal to a higher tribunal; and that it is a maximum which will probably be imposed only in the rarest of circumstances but which I think should he available in the armoury of the judge who takes the case. There is nothing harsh nor onerous about this, and in my view it is part of a sensible provision to admit more people to bail than are at present admitted.

Lord McCLUSKEY

I do not propose to press the amendment today because I feel that Members of the Committee should have an opportunity to look at the arguments that have been put forward, and the Government should have an opportunity to reconsider their arguments. This is a serious matter and the noble Earl has not answered my question as to where the two years came from; he has not told us why the Government have chosen to depart from the unanimous recommendation of the Thomson Committee that the sentence should be one of six months.

The Earl of MANSFIELD

Perhaps the noble and learned Lord will permit me to intervene at this stage. I do so on a matter of information which may contribute to his knowledge. I am informed that, under the Criminal Procedure Act 1975, two years is the maximum sentence of imprisonment available to sheriffs in solemn court for common law offences. So the issues do in fact hang together, do they not?

Lord McCLUSKEY

It certainly does not, because what the noble Earl is proposing is to double the sentence. It makes it two plus two, and there is no logic in the two years; there is no authority for it or precedent for it in my submission. I ask the Government to think seriously about this again. If they do not do so this may be a matter on which we shall have to divide. The noble Earl must take advice about what appears to me to be a confusion in his mind between contempt of court and the crime of attempting to defeat the ends of justice. I think that if he takes advice on that he will see that the offence of attempting to defeat the ends of justice is a perfectly proper one in the law of Scotland and one which would be appropriate in the kind of circumstances he has in mind. Subject to returning to the matter on a future occasion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.27 p.m.

Lord McCLUSKEY moved Amendment No. 11: Page 4, line 39, leave out subsection (12).

The noble and learned Lord said: I hope we shall now be able to make rapid progress. This is really a probing amendment, but I should explain the background to it. If a person is charged in Scotland with the crime of murder, he may be found guilty of murder, he may be found guilty of culpable homicide—which is the equivalent of manslaughter in England—or he may be found guilty of assault. In other words, the larger embraces a number of lesser crimes. Similarly with rape; he may be found guilty of assault aggravated by indecency. That applies to common law offences. It also applies to a number of statutory offences, and your Lordships will see from the Road Traffic Act 1972 that, for example, a culpable homicide charge may be brought and the jury may return a verdict under Section 2 of that Act; a Section 1 statutory charge under the Road Traffic Act 1972 may justify a jury bringing in a verdict of guilty under Section 2. So the position is that the person charged with one crime may be found guilty of a different but lesser crime of the same kind.

When one looks at the wording of subsection (12) one sees that, 'the original offence' means the offence with which the accused was charged —that, in the example I have taken, would be murder— when he was granted bail or an offence charged in the same proceedings as that offence". Culpable homicide or assault would not be an offence charged in the same proceedings; it would not be the offence with which he was originally charged. Accordingly, it seems to me that the definition of the original offence does not really work here. If, as I suspect, it does not work, I think that the problems can be seen in subsection (6), because A court which finds an accused guilty of an offence under this section may remit the accused for sentence in respect of that offence to any court which is considering the original offence". If the original offence was under Section 1 of the Road Traffic Act, and the remit is in relation to Section 2—if that were a possible situation—or if the original offence was rape and the remit was in relation to a conviction of indecent assault, I do not think that subsection (6) would work.

So what is required is to see whether the definition of "original offence" properly works. I think that it might be better to move from the concept of the offence with which the accused was charged to the concept of the offence of which the accused has been competently con- victed, but I do not think that that concept would work very well for subsection (4). Accordingly, I hope that the Minister might care to reconsider whether this works at all and to ask his advisers to consider a fresh definition which would work both here and in the other clauses where this kind of provision is found.

Lord MACKAY of CLASHFERN

The purpose of the subsection which the amendment seeks to delete is to provide a definition which can be used for economy of language, an object which the noble and learned Lord was seeking to achieve by some of his earlier amendments. I think that it is fairly plain that the definition has to apply at a stage before there is any question of conviction, that is at the stage at which the proceedings are being developed. The idea of including this fuller phrase or an offence charged in the same proceedings as that offence is to cover the case where the proceedings may proceed on the basis of some offence different from that which was originally charged, because the investigations following on the original charge have produced the necessity for some other offence to be charged. So at least at the moment it appears to us that this definition does work, that it is necessary to have it for purposes of economy, and that it is reasonably satisfactory.

Lord McCLUSKEY

I wonder whether the Lord Advocate would look at subsection (6), to which I directed attention, because in that situation I think that we are dealing with a different point in time. The subsection states: A court which finds an accused guilty of an offence under this section"— that is the offence of failing to answer to the bail in effect, or of not complying with conditions— may remit the accused for sentence in respect of that offence to any court which is considering the original offence". Does the Lord Advocate not think that the word "remit" relates to remit for sentence, or am I perhaps in error about that?

Lord MACKAY of CLASHFERN

I think that is correct, but the point is that this definition requires to work right through from the stage at which the new charge is added to the proceedings to the stage of remit. So the fact that the remit is included does not I believe detract from the previous argument. This definition would enable one to say whether the proceedings going on in the other court were in respect of an original offence by considering whether these proceedings were in respect of an offence which could be charged in the same proceedings as the offence which give rise to the original requirement for bail.

Lord McCLUSKEY

I think that I follow that, but I shall read it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.33 p.m.

Lord McCLUSKEY moved Amendment No. 12:

Page 4, line 41, at end insert— (" ( ) In this section the burden of proving reasonable excuse shall rest upon the accused, but the court may be satisfied that he had reasonable excuse without hearing evidence on oath, without corroboration and on a balance of probabilities.").

The noble and learned Lord said: I believe that as the clause is worded the onus in fact rests upon the accused to prove reasonable excuse, and I should like the Minister, if he agrees, to confirm that. The first part of my amendment is simply to make that explicit, so that there is no doubt about it. That would be in accordance with the Thomson Committee recommendation. The same applies to subsections (1) and (2) of Clause 7 and other parts of the Bill.

The second part of the amendment is designed to make it unnecessary to lead evidence, or if evidence is led, to have corroboration. As I understand it, the position is that the accused may be charged with this offence, but it may well be that in the circumstances it is quite unnecessary for him to lead evidence, or if he has to lead evidence, he may not be able to provide corroboration. It may be possible to discharge the onus upon him by the production of a soul and conscience medical certificate, or indeed by providing information through the mouth of his solicitor or advocate. It may be that it is impossible for him to provide corroboration, and I would suggest that it may be unnecessary therefore to have solemn proof from an accused person in the circumstances covered by this clause. That is the reason why I have put in the second part of the amendment, and I would ask the Government to comment upon that. I beg to move.

Lord MACKAY of CLASHFERN

So far as the first part of the proposed amendment is concerned, I respectfully agree with what the noble and learned Lord, Lord McCluskey, said. The onus on this matter is on the accused as a result of general provisions—Section 66 of the 1975 Act for solemn proceedings, and Section 312 for summary proceedings. So there is nothing between us on that, except the question of whether it is necessary to say the same thing again in this provision.

However, so far as the second part of the amendment is concerned, the matter is rather different. If the accused has some reasonable explanation—something has occurred; a medical certificate is available—one would expect that to be presented to the procurator fiscal and, knowing how wisely prosecutions are conducted in Scotland, one would not expect the case to proceed. But if the case does proceed, it will do so in the form of an ordinary trial. I ask myself how, if the noble and learned Lord's amendment is accepted, I would deal with the matter if I were acting for an accused person in the course of a trial.

If I have evidence which enables me to prove the explanation, I ought to put it forward because I have no way of telling until the court has decided, whether it is prepared to accept this lesser evidence. The noble and learned Lord's amendment says only "may", and accordingly I have no way of knowing at the important stage whether or not the court is going to exercise that discretion. If that is the situation, it will produce a most unworkable business, and I find it hard to envisage how the noble and learned Lord considers this proposal could be worked in the course of a trial. It is of course perfectly possible for the court to accept explanations and so on ex parte by way of mitigation, but where the matter actually comes to trial I find it hard to see how this would work, and I would respectfully suggest to the noble and learned Lord that to introduce this provision into the Bill would not be an improvement.

Lord McCLUSKEY

As to the first part of my amendment, I am happy to accept the affirmation by the Lord Advocate that the burden does in fact rest upon the accused and it is unnecessary therefore to proceed with that part of the amendment. So far as the other part is concerned, I am also happy to hear him say that it would be perfectly proper for a person accused of this offence to make an approach through his lawyer no doubt to the procurator fiscal, and that the procurator fiscal, if shown a medical certificate or other evidence of that kind, would be unlikely to proceed.

However, the difficulty does not completely disappear with these two assurances because where a person is brought to trial charged with the offence of not complying with the condition, or of failing to turn up for the diet of trial, and he has only his own evidence, and the burden rests upon him, is the Lord Advocate satisfied that he can discharge that burden without corroborative evidence, and is he satisfied that the court would apply the standard of the balance of probabilities in relation to the onus that rests upon the accused?—because if not, it puts the accused in a very difficult position deriving from the circumstance that he simply was not there at the trial.

Lord MACKAY of CLASHFERN

I think that the general position with regard to special defences gives rise to the answer that the accused would be able to discharge the onus on him on a balance of probabilities, and so far as corroboration is concerned, by the nature of the matter I should not have thought that the doctrine of corroboration would have very much of a part to play in this particular situation.

Lord McCLUSKEY

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Provisions relating to monetary conditions]:

4.39 p.m.

The Earl of MANSFIELD moved Amendment No. 13: Page 5, line 19, leave out subsection (2).

The noble Earl said: It may be for the convenience of the Committee if I speak to Amendments Nos. 14 and 15 at the same time. These amendments seek to close a gap in the Bill as at present drafted. Where a summary court makes a probation order, or an order granting absolute discharge, it does so without proceeding to conviction. Subsection (2) of Clause 4 at present extends the reference to conviction in Clause 4(1)(b) to cover these orders. Clause 4(3) provides that a cautioner is not entitled to recover a sum he has deposited where an accused has been charged with an offence of breach of bail, other than failure to appear, unless and until the charge is not proceeded with; or the accused is aquitted of the charge; or the accused is convicted.

The reference to conviction requires to be extended to cover orders of probation or absolute discharge in this context also. If this is not done, the cautioner in such a case would strictly never be entitled to recover his money. The new subsection proposed would define "conviction" for the purposes of Clause 4(1)(b) and 4(3) as including the making of probation orders and orders granting absolute discharge. It subsumes subsection (2). Insertion of the words "of the offence" in line 33 on page 5 is a consequential drafting Amendment. I beg to move.

On Question, Amendment agreed to.

The Earl of MANSFIELD moved Amendment No. 14: Page 5, line 33, after ("conviction") insert ("of the offence").

On Question, Amendment agreed to.

The Earl of MANSFIELD moved Amendment No. 15:

Page 5, line 34, at end insert— (" (4) The references in subsection (1)(b) above and in paragraph (c) of the proviso to subsection (3) above to conviction of an offence shall include references to the making of an order in respect of the offence under section 383 (absolute discharge) or 384 (probation) of the 1975 Act.").

On Question, Amendment agreed to.

4.42 p.m.

On Question, Whether Clause 4, as amended, shall stand part of the Bill?

Lord McCLUSKEY

Before we leave Clause 4 may I simply direct attention to the opening words of the clause, Without prejudice to section 3 of this Act … As I understand it, the effect of Clause 4, taken along with Clause 3, is that, where a person has deposited a sum of money in court and he fails to turn up for a diet of trial, a solemn procedure, then he may be required to forfeit the sum; in addition, to pay a fine the amount of which is unlimited; and, in addition, to face a maximum of two years' imprisonment. This merely emphasises the point I was seeking to make earlier, that the Government are giving the court powers which are quite draconian compared with the powers which the court has had hitherto. I merely direct attention to what this clause says in that regard, because it further makes the point that I was making earlier in connection with the provision for two years' imprisonment.

Clause 4, as amended, agreed to.

Clauses 5 and 6 agreed to.

Clause 7 [Interim liberation by constable of person charged with offence against a person under 17 years]:

Lord McCLUSKEY

had given Notice of his intention to move Amendment No. 16:

Page 8, line 3, at end insert— (" (6) In this section the burden of reasonable excuse shall rest upon the accused, but the court may be satisfied that he had reasonable excuse without hearing evidence on oath, without corroboration and on a balance of probabilities.").

The noble and learned Lord said: This amendment is one which follows the lines of the one that I spoke to earlier, which was Amendment No. 12. I shall therefore not move this amendment.

On Question, Whether Clause 7 shall stand part of the Bill?

Lord McCLUSKEY

If one looks at Clause 7—and one should look at Clauses 8 and 9—what one sees is that these clauses seek to enlarge the powers of the police to grant bail. I do not take exception to that; and, indeed, one should not do so. The Thomson Committee in fact recommended that the police should have larger powers to grant bail; and, indeed, I think the noble Earl would say that it was consistent with and was a concomitant of the closing of the courts on Saturdays. The police having a larger power to release people, then perhaps that power will be used quite generously at the weekend.

There is only one point I should like to make here, and it is that there is a danger here. I have had many contacts with the police in the course of my professional career as a prosecutor, and I have been informed by middle-ranking police officers in Scotland that the power of the police to grant or refuse bail is one which they do not particularly want. They saw such a power available in England, and it was a source of corruption of the police—because, plainly, if you give the police a wide discretion in relation to granting or refusing bail, then you give a considerable temptation to those who want to be out on bail to approach the police and endeavour to corrupt them. I do not know whether or not that is true, but I have been told it, as it were, "off the record" by a number of police officers whom I hold in high regard, in the course of the last few years. What we are doing here is to enlarge the power of the police and to enlarge their discretion, and we therefore enlarge the opportunity for some kind of corruption. I do not expect it to happen, and I am not predicting that it will happen, but it is a matter that we shall have to bear in mind as the years go by to see whether or not this larger discretion prompts people to attempt to corrupt the police; and, if that were to happen, of course, then the matter would have to be reconsidered.

The Earl of MANSFIELD

I very much hope that it does not. I have a very high regard for our Scottish police. I have not seen them professionally, in the sense that the noble and learned Lord has, but I was a member of my local authority until it was reorganised, and I was on the police committee. In my fairly humble judicial sphere I have also had a lot of dealings with the police. I think that, with the guidelines which my noble and learned friend expects to give and with the discretion which they will learn to use—and I am sure they will learn to use it, if I may say so, judicially and wisely, and not corruptly—this is something which, when we look back on it, we shall think was a matter that we need not have worried about.

Clause 7 agreed to.

[Amendment No. 17 not moved.]

Clause 8 agreed to.

[Amendment No. 18 not moved.]

Clause 9 agreed to.

Clause 10 [Sittings of sheriff and district courts]:

4.48 p.m.

Lord McCLUSKEY moved Amendment No. 19:

Page 9, line 38, at end insert— ("(5) Whenever a court holiday is prescribed to occur on a Friday or a Monday with the result that persons arrested on the preceding Thursday or Friday respectively would have to wait three days before the next lawful day, the Sheriff Principal shall make arrangements for a court to sit at least once during such three days to entertain applications from such persons for interim liberation.").

The noble and learned Lord said: This is a matter of which I gave notice at Second Reading of this Bill. The present position is that custody cases are heard on Saturday mornings in the Scottish courts, so that a person who is arrested on a Friday and is detained in custody can be brought before the court with a view to his release by the court on the Saturday morning. The Bill will postpone these Friday p.m. cases from Saturday morning until Monday, and I accept the regrettable necessity for that. But, also, by allowing the court to prescribe court holidays—and the court holidays may take place on a Monday or a Friday—the Bill can extend this period when the court is not sitting (it may happen rarely, but it can happen) for a whole three days, and I believe that that is rather too long.

What I am asking, therefore, is whether, on the rare occasions when the court is not to sit on three consecutive days because a court holiday has been prescribed to fall on a Monday or a Friday, then is it too much to ask for emergency arrangements? The noble Earl will know that during the regrettable strike in Scotland during the spring emergency arrangements were made, which worked very well, for dealing with urgent cases; and one would have thought that some kind of informal arrangement could be made to deal with the custody cases. When one looks at the Thomson Committee report on this, what one sees is that the need to abolish the Saturday sitting derives largely from the circumstances which prevail in Glasgow. It is a pity, in a way, that one has to change the law for the whole country because of what happens in Glasgow, because, unfortunately, nothing works particularly well in the Glasgow Sheriff Court—certainly not as well there as it works elsewhere—and it is a pity that one has to derive from the Glasgow experience the need to abolish the Saturday morning sitting. However, I confine myself to the particular point that, when there are to be three consecutive days on which the court is not sitting, the sheriff principal should make special arrangements for the court to sit at least once to entertain applications for interim liberation. I beg to move.

The Earl of MANSFIELD

I have a certain sympathy with what the noble and learned Lord is trying to achieve with this amendment but, for reasons to which I shall come, I regret that I cannot accept it. The effect of the amendment would be to require a court to be held at least once in the three days when it would not otherwise be sitting because the court holiday falls immediately before or after a weekend. First, I would stress that the police in future will be encouraged and enabled to release people more rapidly over a wider range of offences. My noble and learned friend intends to issue what I might describe as guidelines—which were discussed in the other place and to which I can draw the attention of the House, if necessary. As a result, fewer people should be held in custody in future before their first appearance in court. The police, as noble Lords will know, work closely with the fiscal when considering the release of an accused, and the fiscal's recommendation weighs very heavily with sheriffs when bail is being considered.

The bail study, to which I made reference in my Second Reading speech on this Bill, found that in 95 per cent. of all cases where the fiscal opposed bail, the court refused it. It is, therefore, unlikely that an accused would be held by the police where a court would release him if one were to sit. The guidelines which will be issued to the police will seek to ensure that the accused will be released by the police wherever this is appropriate and particularly where courts are on holiday; so I am confident that in practice very few people will be held in custody unnecessarily when the courts are on holiday over a long weekend. And the amendment, in effect, is rather a clumsy way to strike at a difficulty which I think will scarcely ever arise.

If the amendment were to be carried, it would create severe organisational difficulties for the courts. I understand that since the Thomson Report it is not only Glasgow that is in difficulties. One of the main reasons for Clause 10 of this Bill is the problem of obtaining staff for Saturday working. Noble Lords will be able to imagine the great difficulty there would be in obtaining staff to work during a holiday weekend, given the difficulty which exists in finding staff to work on a normal Saturday. In exceptional circumstances, the sheriff principal will be able to arrange for a court to sit; but, in my submission, it will be wrong, in view of the tiny number of cases likely to be affected, to place all courts under a statutory duty to sit in such circumstances. Indeed, the noble and learned Lord's amendment contemplates the court having to sit, whether or not there are any persons to sit in front of it, so little discretion does it give.

Finally, I have to say the words which I heard so often when sitting where the noble and learned Lord is now placed and which I never thought would fall from my lips: the amendment is in any case defective, particularly in its reference to "lawful day" (a concept which we are abolishing) and to the phrase "interim liberation" which is granted by the police and not by a court, which will release on bail. For these reasons, I cannot commend this amendment to the Committee.

Lord McCLUSKEY

I do not doubt that the amendment could be better worded. I wrote it on the shuttle between London and Edinburgh. I do not regard it as being the function of Members of this House to be parliamentary draftsmen. The intent is quite plain. I am not persuaded by the argument of the noble Lord that it is only in very rare cases where the amendment would bite. It is the touchstone of a civilised system of justice that we can cater for the rare case. I made a careful choice when I used the words: … the sheriff principal shall make arrangements for a court to sit at least once…". I had in mind that he could, within his whole jurisdiction, which may include 10 or 12 courts provide that one court should sit in order to entertain this kind of application. So I invite the Government to think again about that. I do not ask them to adopt my wording. I am sure that it could be improved by the gentlemen for whom I have such high respect across the road in the Lord Advocate's Chambers. But I think that the intention is one that the Government might treat more sympathetically. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 agreed to.

4.56 p.m.

Lord McCLUSKEY moved Amendment No. 20: After Clause 11, insert the following new clause:

Prevention of delay in trials

.—(1) For section 101 of the 1975 Act (prevention of delay in trials) there shall be substituted the following section—

101.—(1) An accused shall not be tried on indictment for any offence unless such trial is commenced within a period of 12 months of the first appearance of that accused on petition in respect of that offence; and, failing such commencement within that period, the accused shall be discharged forthwith and thereafter no proceedings shall be competent against him in respect of that offence:

Provided that—

1. (i) nothing in this subsection shall bar the trial of an accused for whose apprehension a warrant of arrest has been granted for failure to appear at a diet,
2. (ii) on application made for the purpose, the sheriff or, where an indictment has been served on the accused in respect of the High Court, that court, may on cause shown extend the said period of 12 months.

(2) Subject to subsections (3) and (4) below, an accused who is committed for any offence until liberated in due course of law shall not be detained by virtue of that committal for a total period of more than—

1. (a) 80 days, unless within that period the indictment is served on him, which failing he shall be liberated forthwith; or
2. (b) 110 days, unless the trial of the case is commenced within that period, which failing he shall be liberated forthwith and thereafter no proceedings shall be competent against him in respect of that offence.

(3) The High Court may, on application made to it for the purpose, for any sufficient cause extend the period mentioned in subsection (2)(a) above:

Provided that the court shall not extend the said period if it is satisfied that, but for some fault on the part of the prosecution, the indictment could have been served within that period.

(4) The High Court may, on application made to it for the purpose, extend the period mentioned in subsection (2)(b) above where it is satisfied that delay in the commencement of the trial is due to—

1. (a) the illness of the accused or of a judge or juror;
2. (b) the absence or illness of any necessary witness; or
3. (c) any other sufficient cause:

Provided that the court shall not extend the said period on the ground mentioned in paragraph (c) above if it is satisfied that, but for some fault on the part of the prosecution, the trial could have commenced within that period.

(5) For the purposes of this section, a trial shall be taken to have commenced when the oath is administered to the jury.

The noble and learned Lord said: This is the last amendment to be moved today. It is one which I foreshadowed at the Second Reading. I beg to move Amendment No. 20: This amendment derives from the Thomson Committee report, paragraph 15.07 (a). I acknowledge that the amendment which I have put on the Marshalled List is one which goes rather too far because it does not simply reform the 110-day rule but also introduces the element of requiring the court to proceed to trial within a period of 12 months after the accused has first appeared on petition in respect of an offence.

May I explain the 110-day rule to those noble Lords who have not encountered it before. The position is that when a person is arrested in Scotland at the present time he must be brought before a court on the next lawful day—which may, under this Bill, be several days later; but he may spend a maximum of four days in custody on that arrangement. Then, on that day, he may be committed and remain in custody for eight clays and thereafter he will be committed if he is to remain in custody until liberated in the due course of law. That period cannot last more than 110 days. So for a maximum of 120 days, a person may remain in custody awaiting the result of his trial. No matter how serious the crime, if the person is detained in custody, his trial must be concluded within about 120 days of his initial arrest.

Your Lordships will appreciate that that could give rise to difficulties in a case where the trial itself is rather long and it is undesirable to release the accused during the trial. The Thomson Committee, recognising this and having regard to some cases that have given difficulty in the past, proposed that the 110 days should extend not to the conclusion of the trial but to the beginning of the trial. That is the amendment which I should like to see incorporated in this Bill.

The noble Earl will no doubt tell me that it belongs somewhere else; but I believe that it might come into the Long Title of this Bill which talks about the interim liberation of persons who have been arrested…". It is urgent because any day one might have a further serious 110-day problem in a case of murder or in a serious rape case. In any event, it is recommended unanimously by the Thomson Committee; it is not opposed by noble Lords on this side of the Committee and it was regarded as not controversial when the other place in the previous Parliament was considering the Criminal Justice Bill. For all these reasons, I hope to hear that the noble Earl is considering this matter sympathetically, even if he cannot accept my amendment in the form in which it is now appearing on the Marshalled List. I beg to move.

The Earl of MANSFIELD

My Lords, I am happy to say that I am inal most complete agreement with the noble and learned Lord as to the intrinsic desirability of his new clause. As he I think appreciates, this is not the place for it. The reform is as dear to my heart as to the noble and learned Lord's, but, alas!, I am advised that it is incompatible with the Long Title of this Bill, which was designed to put into effect two urgent but narrow points, that is, the abolition of mandatory Saturday courts and the closely-related reform of the Scottish bail system. I can assure the noble and learned Lord that, if he will contain himself for a little longer, he may well be content with the proposals which we are going to make on this subject in the forthcoming Bill.

Lord McCLUSKEY

I am delighted to receive that assurance. I can contain myself and I shall endeavour to do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Remaining clause agreed to.

Schedules agreed to.

House resumed: Bill reported with the amendments.