DECISIONS WHERE BAIL REFUSED ON PREVIOUS HEARING (Hansard, 22 July 1988)

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 199. There is an error as printed in the Marshalled List. I think that it would be appropriate if I were to read the amendment as it should be printed. Under "Decisions where bail refused on previous hearing" should be written: (i) If the court decides not to grant the defendant bail, it is the court's duty to consider, at each subsequent hearing while the defendant is a person to whom Section 4 above applies and remains in custody, whether he ought to be granted bail. (ii) at the first hearing after that at which the court decided not to grant the defendant bail he may support an application for bail with any argument as to fact or law that he desires (whether or not he has advanced that argument previously). (iii) at subsequent hearings the court need not hear arguments as to fact or law which it has heard previously.". The only difference is in the appearance of the words as written on the Marshalled List and the fact that they are not tabulated.
Amendment No. 199 is a result of the fact that during the earlier stages of the Bill in your Lordships' House there was a substantial debate on the effects of the divisional court's decision in the Nottingham Justices case. Your Lordships will remember that noble Lords opposite argued in particular that the judgment discouraged defendants and their solicitors from making early applications for bail because they feared that following an unsuccessful application there would be no second bite at the cherry, and that the courts felt inhibited from hearing in full a second or subsequent application.
The amendment clarifies the law in what I hope your Lordships will agree is a constructive manner. First, it makes it absolutely clear that the court is required to consider bail at every hearing. If, as has been suggested, courts may be in any doubt about their duty, that doubt should be removed. Secondly, we have thought it right to clarify in statute the court's position where no new arguments are advanced at a second or subsequent hearing. We remain of the view that the proposition in the Nottingham Justices judgment is basically right, and that the courts should not be clogged up by a requirement to hear identical arguments over and over again, even if they have no merit. But we were persuaded by the colleagues of the noble and learned 1666 Lord, Lord Elwyn-Jones, and the noble Lord, Lord Harris of Greenwich, in the other place that second applications should be treated differently.
The court may not have all the information that it needs at the first hearing, and the second hearing will be the crucial occasion on which it takes a fully informed decision. This was in fact recognised by the divisional court in the Nottingham Justices case. The court explicitly approved the practice of the Nottingham City magistrates, which was normally to allow two full hearings. We accept that there is a good case on purely practical grounds for drawing the line after the second hearing rather than the first. This is the effect of the amendment.

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, the Motion is that this House do agree with the Commons in their Amendment No. 199 as printed on the Marshalled List but subject to the corrections intimated by the noble Earl, Lord Ferrers.

§ Lord Elwyn-Jones
My Lords, I rise to support the amendment briefly. It will effect an improvement that will mitigate the worst effects of the Nottingham Justices decision by allowing all defendants at least one further full bail hearing after an initial remand in custody.

§ Lord Hutchinson of Lullington
My Lords, I should like to support this amendment and express my gratitude to the Minister because I am one person who has fought over and over again the Nottingham Justices decision. It is a great pleasure to see that decision watered down.
I think that it should be made clear now that the wording has been altered. It now reads: At subsequent hearings the court need not hear arguments whereas before, as in the Nottingham Justices case, it stated that the justices should only hear fresh considerations. So far as I can see, the result is that there is absolutely no reason why the justices now should not hear as many applications as they wish, even if arguments very similar have been put before. It seems to me that under this provision they have a discretion to hear what they want to hear, and surely that is as it ought to be.

Earl Ferrers
My Lords, I am most grateful to the noble Lord, Lord Hutchinson, and to the noble and learned Lord, Lord Elwyn-Jones, for their agreement. Such happy harmony is very agreeable.