HL Deb 01 July 1993 vol 547 cc990-9

Report received.

Clause 1 [Prosecution right of appeal]:

Lord Mishcon moved Amendment No. 1: Page I, line 12, leave out ("High Court or").

The noble Lord said: My Lords, if I may use understatement, a certain amount of discontent was expressed in some parts of your Lordships' House in Committee with regard to some of the Bill's provisions, not its policy. A most useful meeting was arranged between the Committee stage and this stage of the Bill which took place yesterday.

I should like to express my thanks, and I believe that I express the thanks of my colleagues in the House, for the arrangements that were made for that meeting. It was attended by Mr. David Maclean, the Minister of State at the Home Office, the noble Viscount, Lord Astor, who has had the task of assisting with the Bill on the Government's behalf, the noble Lord, Lord Bethell, who has sponsored the Bill in this House, the noble Lord, Lord Harris of Greenwich, my noble friend Lord Williams of Mostyn and the noble Lord, Lord Wigoder. Mr. Michael Stephen was also present and added considerably to the usefulness of the meeting since he is the sponsor of the Bill in another place. We were also helped by officials from the Home Office, the Lord Chancellor's Department and the Crown Prosecution Service.

The result of the meeting was that I and other noble Lords would move amendments on Report. They will either be accepted, as I understand it, or certain assurances of which we were told will be given by the noble Lord, Lord Bethell, or on the Government's behalf. The people who attended that meeting believed that those undertakings and assurances were satisfactory in all the circumstances and your Lordships will perhaps take account of our views when deciding whether you are similarly satisfied.

I move Amendment No. 1 in that spirit, and very briefly. Your Lordships may remember that in Committee the amendment was linked with the difficulty of legal aid. I beg to move.

Lord Bethell

My Lords, I was party to the discussions to which the noble Lord, Lord Mishcon, referred and I understand why he has tabled the amendment. I have no hesitation in inviting the House to support it.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 2: Page 1, line 13, at end insert ("on the grounds that there is a serious risk to the public or that such person was likely to interfere with the course of justice.").

The noble Lord said: My Lords, as your Lordships may remember since it was moved in Committee, the amendment seeks to ensure that these appeals are brought upon definite grounds and assume a minor number, not a major number. I beg to move.

Viscount Astor

My Lords, the noble Lord has explained the concern which underlies this amendment and it is a concern that we all share. He is concerned that appeals against the grant of bail should be brought only in the most exceptional cases and not simply where the prosecutor disagrees with the magistrates' decision. Mere dissatisfaction should certainly not be enough. This power is intended to be used only in rare cases where there is a serious public interest.

I think that the noble Lord will accept that his amendment, as drafted, would not allow a right of appeal in certain cases where most would agree that it should exist; for example, where a person has been charged with serious offences and the prosecutor believes that there is good reason to suppose that the defendant will abscond. On that ground alone, therefore, it is not acceptable. We could, of course, probably all think of alternative wording which could be used, but the danger with attempting to set out in statute the precise circumstances in which the power might be exercised is that something will be missed and a case will arise where all would agree that an appeal should be brought but the wording of the Act will not allow it. A better course therefore, in our view, is to adopt the Scottish approach to these matters, which is to leave open in statute the circumstances in which an appeal might be brought but to lay down clear guidelines for prosecutors.

We had much discussion at Committee stage about what the guidelines to the CPS might contain. Your Lordships will appreciate that, as the Bill has yet to complete its passage, it would be unrealistic to expect guidelines already to have been drafted. Nevertheless consideration has been given to what such guidelines might say and I can give noble Lords some reassurance on that point. The guidelines will, in the first place, make it clear that the CPS foresees the number of cases in which it would exercise the right of appeal as small.

The broad effect of the guidelines will be that the right of appeal would be used only in cases of the greatest concern where there are substantial grounds under the Bail Act on which the court could refuse bail. Prosecutors will apply an overarching test of whether there is a serious risk of harm to members of the public or other significant public interest grounds. The public interest grounds will not be used to justify appeals in minor cases. In making their assessment prosecutors will take into account the seriousness of the offence. Examples of such cases might include offences of violence where weapons are used, serious sexual offences where there is an element of violence and serious arson cases. I hope that your Lordships will accept that guidance to this effect provides the best way of meeting the anxieties which have been expressed and that, with that assurance, the noble Lord will agree to withdraw his amendment.

7.30 p.m.

Lord Williams of Mostyn

My Lords, we welcome what is a most productive approach. I endorse very shortly the remarks made by my noble friend Lord Mishcon about the very helpful meeting that we had, especially regarding the anonymous public servant who produced an admirable minute. He deserves every congratulation.

Lord Harris of Greenwich

My Lords., I have but one question to put to the noble Viscount. I believe that we discussed the point on Monday. When the guidelines have finally been drafted, it would be most helpful if those of us who have participated in the proceedings could have copies.

Viscount Astor

My Lords, I am delighted to give the noble Lord that assurance.

Lord Mishcon

My Lords, in view of the assurances given by the noble Viscount, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Harris of Greenwich moved Amendment No 3: Page 1, line 19, at end insert ("and such appeal has been authorised by a person having at least the status of a member of the Crown Prosecution Service with four years' seniority.").

The noble Lord said: My Lords, the amendment deals with the same point as that detailed in Amendment No. 4, tabled in the name of the noble Lord, Lord Mishcon. It raises the question as to who will determine whether the appeal on behalf of the Crown Prosecution Service should be made. I believe that there was general anxiety, certainly so far as concerns the noble Lord, myself and my noble friend Lord Wigoder, that that decision should be taken at a senior level in the Crown Prosecution Service. One would not want a situation in which a relatively junior and inexperienced Crown prosecutor, possibly in office for a matter of only three or four months, did in fact decide to announce that he was going to appeal without any reference to a senior officer, or without taking any subsequent action to obtain the authority of a senior officer, with the result that a defendant was wholly unreasonably kept in custody for 48 hours, which would be the effect of announcing the appeal.

We discussed the matter at our unofficial "Committee stage" yesterday evening. After the noble Lord, Lord Mishcon, has spoken, I shall be most grateful if the noble Viscount can give us some indication as to what is the agreed position. My amendment deals with a relatively senior member of the Crown Prosecution Service, whereas the amendment of the noble Lord, Lord Mishcon, puts forward an alternative form of wording. We await with interest to hear the noble Viscount's response. I beg to move.

Lord Mishcon

My Lords, I need not add anything to the very clear explanation of what happened at yesterday's meeting given by the noble Lord, Lord Harris of Greenwich.

Viscount Astor

My Lords, the amendments reflect the concern that a decision to appeal against the grant of bail may be taken on flimsy grounds by an inexperienced prosecutor, with the result that a person whom a magistrates' court has decided should be granted bail is, therefore, held in custody. We are all fully aware of the special nature of the power that the Bill is creating and of the need to ensure that it is exercised sparingly and judiciously. Our concern is that such an amendment would introduce a requirement which simply could not, for very sound practical reasons, be met in all cases.

In many cases—certainly those where a defendant is brought before the court having been arrested the previous day—Crown prosecutors will receive the case papers only a short time before the day's business begins. Every effort should be, and will be, made to ensure that there is prior consultation before a decision is taken to appeal against the grant of bail. I hope that your Lordships will appreciate that the speed at which business moves and the impossibility of ensuring that a branch Crown prosecutor will always be available at the end of a telephone means that imposing an absolute requirement of that sort could have the effect of preventing an appeal being lodged in a case in which it is clearly justified. It is perhaps worth registering that one branch Crown prosecutor may have all the prosecutors working in all the courts in a shire county reporting to him or her: it is simply not possible to guarantee that one person will always be available, even if the prosecutor is able to get to a telephone within the half-hour or so before the court business begins.

While the Crown Prosecution Service will undoubtedly do everything in its power to ensure that only those appeals which are clearly justified are brought—and the guidance to which I have already referred will help to ensure this—those practical constraints must be taken into account and therefore lead the Government to resist a statutory requirement for authorisation within a given period or at a specified level.

I can assure your Lordships that the guidance which will be issued to Crown prosecutors will make it clear that appeals should not be made by junior prosecutors without seeking approval from more senior lawyers. The phrase "more senior lawyers" means lawyers of at least four years' experience within the Crown Prosecution Service. In any case where Crown prosecutors consider that it might be appropriate to use the right of appeal, they will, wherever possible, obtain prior authority to do so. If at the hearing when they have heard all that the defence has to say, and that view is confirmed, they will have authority to lodge the appeal. If, in exceptional circumstances, it is not possible to obtain prior authority, Crown prosecutors will seek a subsequent review of the decision to appeal by a more senior lawyer. That will be done within the time limit for giving written notice of appeal, if possible; but if not, within 24 hours at the latest.

That will be spelt out in the guidance to Crown prosecutors, and I hope will reassure your Lordships that there will always be a "double check" by a more senior prosecutor in cases involving an appeal against the grant of bail. On that understanding, I hope that noble Lords might agree to withdraw their amendments.

Lord Harris of Greenwich

My Lords, speaking on behalf of myself, my noble friend and, I suspect, the noble Lord, Lord Mishcon, I think that the noble Viscount's answer does in fact meet the anxiety that we expressed on the matter. Subject to one point, with which I shall deal shortly, I shall withdraw the amendment. The only additional point I make is that I should certainly like to associate myself with the noble Lord, Lord Williams of Mostyn, in his thanks to the official who drafted the "heads of agreement" of yesterday evening. It was an admirable piece of work. Whoever did it deserves considerable congratulation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon had given notice of his intention to move Amendment No. 4: Page 1, line 19, at end insert, ("and such appeal has been authorised by a person having at least the status of Branch Crown Prosecutor.").

The noble Lord said: My Lords, in order that the spirit of unanimity which appears to have gripped the House should continue, I should also like to associate myself with the vote of thanks expressed in regard to the person who so accurately, and in such a businesslike way, composed the minute, to which the noble Lord, Lord Harris of Greenwich, referred. For reasons similar to those advanced by the noble Lord, I shall not move my amendment.

[Amendment No. 4 not moved.]

Lord Mishcon moved Amendment No. 5: Page 1, line 21, leave out from ("prosecution") to ("granted") and insert ("made representations that bail should not be").

The noble Lord said: My Lords, the amendment deals with a technical matter which was observed by the Government and the noble Lord, Lord Bethell. I believe that I am right in saying that they have agreed to accept the amendment. I have but one comment to make. It concerns what lawyers would call a comment under the "slip rule". We all received such help from the Bill department that I should not like any words of mine to be regarded as criticism of those involved.

However, there was a misprint in the amendment in Committee to the effect that the word "representation" should be in the plural. I pointed that out to those concerned and was informed that it would be put right on Report with the insertion of the word "representations". Under the slip rule, if the amendment is accepted, I hope that the plural of the word will go into the Report. I beg to move.

Lord Bethell

My Lords, I agree that the wording proposed by the noble Lord, Lord Mishcon, amounts to an improvement in the Bill. The wording is more felicitous; and, if I may say so, the same applies to the proposed wording for Amendment No. 6. I therefore invite the House to accept the amendment.

Lord Mishcon

My Lords, all I can say is, thank you.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 6: Page 1, line 22, leave out ("objection was") and insert ("representations were").

The noble Lord said: My Lords, I repeat my thanks. I beg to move.

On Question, amendment agreed to.

Lord Bethell moved Amendment No. 7: Page 2, line 2, leave out ("one hour") and insert ("two hours").

The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendment No. 9. The amendments offer a possible alternative to Amendment No. 8 in the name of the noble Lord, Lord Mishcon. I accept the principle behind the noble Lord's amendment that it should be clear on the face of the Bill that a failure to lodge written notice should lead to the appeal failing and the release of the defendant. To make sure that this is a realistic timetable for prosecutors to work to, the amendments would, with the approval of the noble Lord, Lord Mishcon, extend the time limit from one hour to two hours.

The amendment in the name of the noble Lord, Lord Mishcon, refers to the appeal being null and void. Those words might suggest that the oral notice of appeal is retrospectively invalidated and might raise questions as to the lawfulness of the detention of the defendant in the interim period. The amendment which appears in my name refers instead to the appeal being, deemed to have been disposed or if the prosecution fails to lodge written notice within the two-hour limit. "Disposed of" are the words used in Clause 1(6) of the Bill, which has the effect that once the appeal is determined or otherwise disposed of the defendant must be released from custody. I therefore hope that noble Lords will accept Amendments Nos. 7 and 9. I beg to move.

Lord Mishcon

My Lords, the noble Lord, Lord Bethell, has set out the position very fairly. I am content with his amendments.

On Question, amendment agreed to.

Lord Mishcon had given notice of his intention to move Amendment No. 8: Page 2, line 3, at end insert ("failing which, the person shall be released from custody and the prosecution appeal shall be null and void.").

The noble Lord said: My Lords, given the circumstances which have just been explained, I shall not move the amendment.

[Amendment No. 8 not moved.]

Lord Bethel moved Amendment No. 9: Page 2, line 6, at end insert: ("(6A) Where the prosecution fails, within the period of two hours mentioned in subsection (5) above, to serve one or both of the notices required by that subsection, the appeal shall be deemed to have been disposed of.").

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 10: Page 2, line 8, leave out ("commenced") and insert ("determined").

The noble Lord said: My Lords, Amendments Nos. 10 and 11 deal with the anxiety expressed in Committee that the term of custody, should be as limited as possible in the circumstances and that the hearing of the appeal, as your Lordships have already heard, should be expedited. It is in that spirit that my amendments have been put down. I believe that the noble Lord, Lord Bethell, has something to say about them. I beg to move.

Viscount Astor

My Lords, the Government accept the serious anxiety behind this amendment about the length of time a defendant spends in custody pending the resolution of the appeal. It is an argument of compelling principle that a person to whom the courts have already granted bail should spend as little time as, possible in custody pending the hearing of the prosecution appeal. That is the desire of all those involved. The expectation should be that, save in exceptional circumstances, appeals should be not only commenced but determined within 48 hours. The fact that the Bill now restricts the prosecutors who may exercise a right of appeal, and the assurances which can be given about the circumstances in which an appeal may be launched, provide reassurance that this power will be used only in a small number of cases. The courts will want to hear appeals as quickly as possible within the 48-hour period.

There may be circumstances when it would be in the interests of justice to allow a short adjournment beyond the 48-hour time limit; for example, where some further information not immediately to hand might assist the judge in reaching a decision. Such cases should be very rare—we would expect most appeals to be heard quickly and on the basis of the information already available—but it might be unjust not to allow for them. I believe that the noble Lord himself recognises that point. I hope that because of that anxiety he may be persuaded not to press the amendment.

The noble Lord, Lord Mishcon, also spoke to Amendment No. 11. I have spoken several times about reassurances which the Government are prepared to give in response to concerns over aspects of the Bill. In addressing that amendment, I have to ask your Lordships to recognise that it would place heavy burdens on those responsible for bringing appeals of this kind and those tasked with making arrangements for their hearing.

The Lord Chancellor's Department proposes to consult the judiciary with a view to providing guidance to the effect that in those cases where the time limit would, but for the formula provided in the Bill as it now stands, expire on a Saturday or public holiday, everything possible should be done to expedite the hearing. Where this proved impossible, consideration would be given to the possibility of making special local arrangements to bring on the appeal on a Saturday or public holiday.

That encompasses the desire expressed by the Lord Chief Justice, on being consulted about this prosecution right of appeal, that everything should be done to avoid the necessity of defendants being held in custody for long periods. The noble and learned Lord, Lord Taylor, has indicated that where the appeal is launched just before a weekend or bank holiday he would expect the appeals to be heard wherever possible on the same day.

Those undertakings move the Government as near as they are prepared to go to the spirit of the amendment of the noble Lord, Lord Mishcon. On that basis I hope that he will feel able to withdraw the amendment.

Lord Bethell

My Lords, I associate myself with the comments made by my noble friend. It is a measure of the respect with which we have taken into account the observations of the noble Lord, Lord Mishcon, and other noble Lords opposite, that we have gone into such detail and arranged the assurances which my noble friend has put before the House. I hope very much that noble Lords opposite concede that those assurances go a long way to meeting the points raised by the noble Lord. I hope that in the light of what my noble friend said the noble Lord will see fit to withdraw his amendment.

Lord Mishcon

My Lords, I am deeply grateful for what has been said, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

Lord Elton

My Lords, as a mere spectator I should like to say what an agreeable and unusual experience the passage of this Bill has been.

Earl Ferrers

Order!

7.45 p m.

Then, Standing Order No. 44 having been dispensed with (pursuant to Resolution of this day):

Lord Bethell

My Lords, I beg to move that the Bill be now read a third time.

Moved, That the Bill be now read a third time.—(Lord Bethell.)

Lord Mishcon

My Lords, in dealing with the Motion which has just been so eloquently moved, perhaps I may say that I have learnt two lessons from the course that this Bill has taken. First, when one is informed that no amendments are possible if a Bill is to be kept alive, I advise my brethren not to believe it. The second lesson is that if one does believe it, one still has a duty, as a Member of this great House, with its duties and powers of revision, to say, "So far and no further". If amendments are necessary, especially where the liberty of the subject is concerned, one must not be constrained and this House must never fall to that temptation.

Having said that, I believe that other noble Lords who have been concerned with this matter will agree that I have been treated with the greatest courtesy by the noble Lord, Lord Bethell, and the Minister. It has not been easy to reach agreement on these very important matters in a short period of time. It would not have been possible without the co-operation and the courtesy of those involved.

Lord Wigoder

My Lords, first, perhaps I may congratulate the honourable Member in another place who promoted the Bill. Secondly, perhaps I may compliment the noble Lord, Lord Bethell, upon the way in which he has steered the ship into harbour in your Lordships' House after a short, but somewhat stormy voyage. Finally perhaps I, too, may express my thanks to the noble Viscount, Lord Astor, for the assistance that he has been able to give on behalf of the Government in ensuring that the legitimate anxieties about the Bill were satisfactorily met.

I conclude by underlining one point. There is nothing in the Bill that should lead in any way to the relaxing of the standards which magistrates have to apply in deciding whether bail should be granted. The prima facie entitlement to bail set out in the Bail Act 1976 remains unaltered. The grounds of objection to bail which have to be proved before a person can be remanded in custody remain wholly unimpaired; and the presumption of innocence, of course, remains completely untouched.

I am sure that the Government will agree that there is nothing in the Bill which can or should lead to the still further overcrowding of our remand prisons.

Baroness Seccombe

My Lords, I, too, add my congratulations to the honourable Member for Shoreham. The principle of the Bill was received in this Chamber with general and enthusiastic support. However, I believe that it will leave the House as a greatly improved Bill which will be much welcomed by the judiciary as a tool in the pursuit of justice.

Viscount Astor

My Lords, I congratulate my noble friend Lord Bethell on, I hope successfully, taking this short but important Bill through your Lordships' House. I, too, wish to thank those noble Lords who have contributed to our discussions on the Bill, in particular the noble Lords, Lord Harris of Greenwich, Lord Wigoder, Lord Williams of Mostyn, Lord Mishcon, the noble Viscount, Lord Tenby, and my noble friend Lady Seccombe. I believe that we have shown that whatever timetable we face your Lordships are able to deal with the Bill. Your Lordships are also able to give it proper consideration. I am sure that noble Lords are right in saying that we added to the Bill.

I am grateful for the words that noble Lords opposite said about the officials who helped with the Bill. It has been a busier time for them even than for your Lordships. I appreciate the noble Lords' comments. I am grateful for all the work that my officials have done. I trust that the Bill will now be given a Third Reading.

Lord Bethell

My Lords, I, too, thank those noble Lords who have taken part in the discussion of the Bill. I concede the point made by noble Lords opposite that the Bill has been considerably improved by amendments moved by the noble Lord, Lord Mishcon, and others. I wish to assure noble Lords that when I advised the House on Second Reading that it would not be possible to amend the Bill and for it to become law, I spoke in good faith on the basis of information given to me, no doubt equally in good faith, by the department and others. No one is happier than I am that it proved possible for another place, and for the Government, to arrange for the various points raised by the noble Lord, Lord Mishcon, and others to he incorporated into the Bill before it returns to another place, we hope tomorrow morning. The, so to speak, shadow Committee stage of the Bill which took place not a million miles from this Chamber yesterday—it might have been irregular, and ideally, not to be emulated—was a very useful exercise. I hope, therefore, that we have got the Bill right.

A number of noble Lords opposite have referred to the need to protect miscarriages of justice whereby under the Bill an innocent person given bail by a judicial hearing could conceivably be incarcerated for 48 hours or longer. I hope that noble Lords will also concede that, balanced against that consideration, is the need to protect members of the public from an unwise decision to grant hail. There have been one or two such instances in the recent past. Those who moved the Bill had that consideration in mind also.

Having said that, I wish to thank all noble Lords who have participated, in particular, the officials and others who co-operated so well in our discussions yesterday and earlier. I hope that the Bill will receive a Third Reading.

On Question, Bill read a third time, and passed, and returned to the Commons with amendments.