HL Deb 28 June 1993 vol 547 cc660-77

8.9 p.m.

Lord Bethell

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.—(Lord Bethell.)

Lord Mishcon

My Lords, while wanting at once to pay tribute to the Minister who has taken semi-charge of this Bill, I want, on this Motion that the Committee stage be taken, to record my own disappointment, and I believe the disappointment of other Members of this House, at the way that the Government have failed to look at this Bill with the particularity and the concentration that they should have done in regard to its terms.

As to the policy behind the Bill, I think that noble Lords are possibly unanimous in supporting it. But the way in which the Bill has been treated, dealing as it does with the liberty of the subject, is something which I believe is not worthy of the House from which it came, or the House which is now considering it.

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD STRABOLGI in the Chair.]

Clause 1 [Prosecution right of appeal]:

Lord Mishcon moved Amendment No. 1:

Page 1, line 6, leave out ("or convicted of").

The noble Lord said: It is in the spirit of my earlier remarks that I intend to move these amendments. It will give the Government and the noble Lord, Lord Bethell, an opportunity to answer the points that try to make in the amendments. But I announce beforehand that because I am told that it is essential that this Bill be passed without amendment (except the amendments of the noble Lord, Lord Bethell. with which we shall be dealing), I do not intend to press any of my amendments to a vote.

The first amendment seeks to delete the words "or convicted of" when it comes to a question of the right of appeal. It is the tradition as I know it that, on conviction in any one of our criminal courts, the prosecution makes no submissions in regard to whether there should be bail or a remand in custody, it being competent for the court alone to deal after conviction with any prisoner before it. I should think it an odd situation where bail is appealed against when the court which has heard the case and is dealing with the matter of sentence after conviction is told, "Well, you had better not proceed with your sentence because I shall appeal on behalf of the prosecution. Although there has been no submission by me to the contrary after conviction, I am going to appeal now against your award of bail."

Often that is done in order that the court may carefully consider the just sentence that it wants to impose. Sometimes bail is granted after conviction in order that further inquires can be made. But for there to be a right of appeal in those circumstances at least calls for an answer. I beg to move.

Lord Bethell

This is a revising Chamber and it is quite correct that any noble Lord should set down any amendment which he believes is essential before a Bill becomes law. When I took upon myself the task of putting the Bill before this Chamber, I was assured through various channels that there was only one way in which the Bill could become law; namely, if it were passed unamended. It is only because of the skill and persuasiveness of Members opposite, and in particular the noble Lord, Lord Mishcon, that we are considering amendments today and it may be possible to satisfy some of the concerns raised by the noble Lord.

I note with great care the comments made by the noble Lord. But I hope that he will concede that I took some care and pains to try to meet his worries, discussing them with representatives of the Benches opposite and with the mover of the Bill in another place. I hope that the noble Lord will find that the Bill, although perhaps not entirely satisfactory from his point of view, will be improved by this Committee stage. Despite the fact that there may be amendments later, I hope that the Bill will have every chance of passing through all its stages in this Chamber and in another place in time to obtain Royal Assent.

With regard to this amendment of the noble Lord, given that the possibility exists of granting bail in respect of those convicted but not yet sentenced, I see no reason to preclude such cases from the possibility of a prosecution right of appeal. On those grounds I wonder whether the noble Lord will consider withdrawing his amendment.

Viscount Astor

I have considerable sympathy with the timetable that the noble Lord, Lord Mishcon, and indeed this Chamber, have faced on the Bill. This is a Private Member's Bill from another place and we have to deal with it as and when we find it on its arrival. I understand that, subject to the conclusion of the Committee stage this evening, we may, if it is agreeable to the Committee, be able to take Report and Third Reading together tomorrow in the dinner hour. My noble friend the Lord Privy Seal intends to move such a Motion tomorrow to enable that to take place.

I turn to the amendment. In another place the logic of an extension of a prosecution right of appeal to those convicted but as yet unsentenced was accepted. That does not mean that the Committee should not now consider the point. But the Government's view remains unchanged. We believe that if it is open to the prosecution to appeal against the grant of bail given to a person as yet unconvicted, then those already convicted by the courts must be in the same position.

The Government have no difficulty with the current position under the Bail Act in which the courts, having convicted a defendant, must consider whether there is a need for a remand in custody or on bail pending the compiling of reports for the purposes of sentencing. For many such defendants, even for some of those faced with a custodial sentence, the courts may safely grant bail knowing that community ties or other factors make it unlikely that the defendant will further offend, abscond or interfere with witnesses during that period of freedom. But, where the prosecution is sufficiently concerned that it opposes bail at this stage, it follows that it should also have a right of appeal.

I hope that that explanation goes some way toward reassuring the noble Lord, Lord Mishcon.

8.15 p.m.

Lord Williams of Mostyn

Certainly, because of the recent provisions of the Criminal Justice Act, remands prior to sentence are increasingly required and mandatory in the magistrates' courts as well as in the Crown Court, notably for pre-sentence report. On occasions recently—there is a case in front of the courts at the moment which I do not specify—prosecutors have felt obliged professionally on instructions to object to the grant of bail. It is in those limited circumstances that I understand the support of the noble Lord, Lord Bethell, for the words "or convicted or' obtains, since in due time the prosecution right of appeal will be limited in effect to the Crown Prosecution Service or analogous bodies. My view is that "or convicted of" is a legitimate phrase to remain within the Bill.

Lord Wigoder

It is clear that the right of appeal under the Bill applies where a defendant in the magistrates' court is convicted and then remanded on bail pending sentence. I should like to ask what the position is where a magistrates' court convicts and sentences and then proceeds to grant bail pending appeal. Is the right of the prosecution to object to that course covered by the Bill?

Viscount Astor

I believe that we deal with that point in a later amendment. I do not have the number of that amendment to hand but I understand that we deal with the point and perhaps we could address it at that stage.

Lord Harris of Greenwich

With respect, I do not believe that it is dealt with in a subsequent amendment.

Lord Williams of Mostyn

Both the noble Lords, Lord Wigoder, and Lord Harris of Greenwich, are right.

Lord Bethell

In that case I believe that the matter will be dealt with by the instructions issued to the court by the Crown Prosecution Service. As with a number of the amendments of the noble Lord, Lord Mishcon, we hope to deal with the points raised by instructions issued by the CPS to the courts. In the light of those assurances, I hope that the noble Lord will see fit to withdraw his amendment.

Lord Wigoder

This is not a matter of instructions being given by the CPS. There is a very clear difference in principle between a defendant who is convicted and then remanded on bail for sentence, where the Bill applies, and a defendant who is convicted and sentenced to a term of imprisonment but then is granted bail pending appeal. That would not be a matter for instruction but of getting it absolutely clear in the legislation.

Viscount Astor

It will be possible for the prosecution to launch an appeal after the sentence is passed.

Lord Mishcon

The reply that was given to me by my noble friend Lord Williams is the reply that has convinced me to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 2:

Page 1, line 12, leave out ("High Court or").

The noble Lord said: I can put this point shortly; I mentioned it at Second Reading. It involves the question of legal aid and whether or not prompt attention could be given by the courts to the appeal against bail with which we are dealing. As I understand it, if the matter goes to the Crown Court, the criminal legal aid certificate runs. In those circumstances the appeal in relation to the proposed prisoner applies. However, if the matter goes to the High Court, as I understand it—this was confirmed in a letter which the Minister courteously sent to me—then a civil aid certificate must be applied for. However, we all know how long a civil aid certificate takes to be considered and granted. In those circumstances it seemed to me only right to limit the matter to the Crown Courts and not to bring in the High Court.

Viscount Astor

Amendment No. 2 returns us to a point made by the noble Lord, Lord Mishcon, during Second Reading. He was entirely right in pointing out that where a prosecution appeal against a bail decision is to a High Court judge, the defendant would need to obtain civil legal aid, rather than criminal legal aid. But I hope that I can reassure the noble Lord that where civil legal aid is needed, so that the defence has the proper amount of time to ready their arguments for the appeal hearing, the Government will ensure that applications for such aid will be dealt with speedily.

Bail proceedings under the Bill will be heard by either a Crown Court or High Court judge. In some cases, at the original bail hearing before the magistrates' court, the accused will already be in receipt of criminal legal aid which would cover bail proceedings before the Crown Court. If the accused is not in receipt of legal aid at the original bail hearing he may apply to that court for legal aid for the hearing itself and/or when the prosecutor makes his intention to appeal known.

If the appeal is to be heard before a High Court judge the accused will have to apply for a civil legal aid certificate. Emergency certificates can be granted over the telephone and do not take a considerable amount of time to determine. Legal aid regulations allow for payment to be made to solicitors for work carried out prior to the issue of an emergency certificate if the certificate is applied for at the first available opportunity.

I hope that that deals with the point made by the noble Lord, Lord Mishcon.

Lord Williams of Mostyn

It does not really do so. I have not looked around too far, but I can see at least three practitioners present. One is the noble Lord, Lord Wigoder, one my noble friend Lord Mishcon and one reflected in my spectacles, which is me.

When the Minister says that civil aid certificates can be speedily attended to, I wonder whether he was party to the correspondence which indicates that most civil aid officers have a system whereby they do not even answer letters for six weeks, never mind reach a determination.

This is a serious matter and underlines the moral purpose of the attitude of my noble friend Lord Mishcon. It has been made plain by me for our side that we emphasise our support for the principle of the Bill. But the Minister said that the Government will attend to or ensure that civil legal aid will be dealt with speedily. That must mean within 48 hours, or indeed less because the time limit for the first hearing of the bail appeal is 48 hours.

I do not want to be difficult; I want to be helpful. How will the Government bring about that wonder?

Lord Wigoder

I am not sure that Members of the Committee should go on about this matter. It may occur to the noble and learned Lord the Lord Chancellor to remove legal aid altogether.

Lord Williams of Mostyn

That has already occurred to him.

Lord Harris of Greenwich

I hope that the noble Viscount will look at the matter between today's debate, Report and Third Reading. It may be that the noble Lord, Lord Mishcon, is intending to withdraw the amendment. However, a point of substance has been raised and I hope that between now and tomorrow evening the Government will consider the matter closely.

Lord Bethell

Any point raised by the Committee will be looked at between this stage and further stages. However, I wish that some of the points mentioned had been raised at Second Reading. It would have made it easier for us to tackle them and fit them into the tight timetable which, through no fault of my own, has been offered to me as a way of getting the Bill through.

Discussions have taken place between Second Reading and today. As I am sure noble Lords opposite will assert, we have done everything possible to meet the anxieties raised, particularly those of the noble Lord, Lord Mishcon, who took an effective and vigorous part in the Second Reading debate and who tabled his concerns in the form of amendments. We on these Benches have done our best to meet those anxieties. I hope therefore that the Committee will agree to accept the assurances given by my noble friend and that the noble Lord, Lord Mishcon, will see fit to withdraw his amendment.

Lord Williams of Mostyn

I must establish the facts. My noble friend Lord Mishcon raised this point in the clearest form; it is on the record. Indeed, because it was raised in the clearest form, on 22nd June a letter was sent from the Minister. That letter, both courteous and full as my noble friend said, dealt with the matter specifically in the first substantive paragraph on the second page. It is dealt with on the clearest basis. In the last sentence the Minister said: I may need to return to this point in Committee". The point has not been addressed. No one is suggesting that the noble Lord, Lord Bethell, has not been under time constraints. We come back to the points raised by a number of us on an earlier occasion in your Lordships' Chamber; that is, that rushed legislation sometimes does not do the job.

Viscount Astor

I realise that I am perhaps the only Member of the Committee who does not have the legal background of noble Lords opposite. However, I said that I would return to the matter in Committee and I feel that I have done so. It is unfair for the noble Lord to say that I have not. I accept that he may feel that I have not gone as far as he would wish, but for him to say that I have not returned to it is perhaps slightly pushing the point.

The Legal Aid Board has given an undertaking that applications will be dealt with speedily. Of course, the undertaking given by the board must include dealing with applications over the telephone and retrospectively. I have gone as far as I am able. It is difficult with any situation to say that it will be dealt with at any specific instant or time. The Government are able to say only that applications will be dealt with as speedily as possible.

Lord Harris of Greenwich

The point is that we are limited to only 48 hours. We are not talking of weeks or months; we are talking of 48 hours. The simple difficulty, sometimes, of getting hold of people in authority who are prepared to give their consent is obvious. In his letter the noble Viscount conceded—this is his language, not mine—that, It would be possible to remove the High Court from the face of the Bill to overcome this, but I think you will share my reluctance to see this happen, on the basis that the High Court has a supervisory role over the lower courts and it would be wrong to restrict, in this way, its jurisdiction over bail proceedings. I may need to return to this point in Committee". A few moments ago we were told by the noble Lord, Lord Bethell, that that point had not even been raised on Second Reading. That seemed to demonstrate that the point was emphasised with some degree of clarity.

I am not an opponent of the Bill. We want to make progress with this matter, but we want guarantees that people who find themselves on their way to prison get immediate legal aid. I am bound to say that so far I have heard nothing that guarantees that. It is this particular point that I have asked the noble Viscount to look at between this evening's and tomorrow's proceedings. I hardly need emphasise that it is most unusual for us to have Report stage and Third Reading 24 hours after the Committee stage of a Bill. I very much hope that the noble Viscount will agree to that.

8.30 p.m.

Viscount Astor

I am quite prepared to look into the points that have been raised by the noble Lord between now and Report stage.

Lord Williams of Mostyn

I did not mean to be ungracious in saying that the Minister had not attended to the point. I should have added the qualifying words "to my satisfaction". The noble Baroness who sits behind the noble Viscount will know that on occasions magistrates' courts sit after five o'clock but I am not sure that Legal Aid Board offices are open after five o'clock. If prison is involved it is important that the ordinary, inarticulate, very often disturbed and unhappy, citizen should have access to sensible legal advice.

Baroness Seccombe

I am very conscious that these are people whom magistrates have decided should be at liberty. The prosecution then says that it wishes to appeal against that decision. I believe that it is even more important in that different situation to make sure that every opportunity is given to these people to have legal aid as quickly as possible. I believe that time is of the essence.

Lord Mishcon

One imagines that in most cases one is dealing with people who have not yet been convicted of any crime. Perhaps I may ask the noble Viscount whether in his efforts to clarify this matter between now and the next stages of the Bill he will seek not just the undertaking from the Legal Aid Board that he mentioned—that that body will deal with the matter expeditiously or as soon as possible—but also an undertaking that it will deal with these matters, if the appeal goes to the High Court, within the 48 hours stipulated in the Bill. That will make those of us who are very worried about this provision a little happier.

Viscount Astor

I fully accept that I will have to go back and look at this matter between now and Report stage. However, most of these cases will be dealt with within the Crown Court. In rare cases that go to the High Court the Legal Aid Board has agreed to grant emergency legal aid certificates over the telephone. They can be made retrospective to cover work already done.

Lord Wigoder

Perhaps the noble Viscount can tell us if the noble and learned Lord the Lord Chief Justice has been asked whether or not he desires that the High Court should be burdened with this particular duty?

Viscount Astor I cannot at the moment answer the noble Lord's question. If I may, I will be in touch with him between now and Report stage in order to deal with it.

Lord Mishcon

In those circumstances, however unhappy I may feel, I beg leave to withdraw the arnendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 3:

Page 1, line 13, al 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: I can be equally brief in regard to Amendment No. 3. The Bill should give a clear indication to the courts and certainly to the Crown Prosecution Service as to the circumstances in which an appeal should take place. We are operating against a background in which under the statute there is a presumption that a defendant is entitled to bail. We are dealing with exceptional powers in granting a right of appeal to the prosecution. Therefore, I think it worthwhile to put into the Bill the grounds upon which an appeal could be brought; namely, that there is a serious risk to the public or that the person concerned is likely to interfere with the course of justice. I beg to move.

Lord Bethell

The Committee will share the desire of the noble Lord, Lord Mishcon, to see that the use of this appeal is limited to such cases where serious consequences are feared if bail is granted. But I do not believe that it would be right by statute to fetter the prosecutor's exercise of the right of appeal. The Crown Prosecution Service has undertaken to produce such guidance to deal with this matter. In drafting it I am sure that the Government will wish to consult concerned parties. In those circumstances, I will be grateful if the noble Lord will consider withdrawing his amendment.

Lord Williams of Mostyn

I recognise the assistance that has been given by the Home Office, in particular the Minister at the Home Office who has had extensive arid full discussions with, among others, the noble Lord, Lord Bethell, and myself. The indication is that the Crown Prosecution Service will publish and be bound by certain guidelines. It seems to us at all events that if those guidelines incorporate a phrase like "serious risk to public safety or other significant public interest involved" they ought to safeguard everyone's legitimate interests. For instance, if there were a significant risk of the person absconding on bail in the case of serious charges that would come within "other significant public interest involved".

We should like to see the Crown Prosecution Service guidelines as soon as possible. If they are to be modelled upon the Scottish experience—on which we have been assured by the Home Office—there seems to be little reason why they should not be produced promptly—like tomorrow.

Viscount Astor

The circumstances of the offence which a prosecution right of appeal should cover is an issue on which there is no simple answer. Noble Lords familiar with Scottish law will know that the Act allowing prosecution rights of appeal in Scotland does not attempt to define these circumstances, beyond the point that the prosecution is dissatisfied with the decision of the court. But the Scots provide their prosecutors with guidelines, and it is this course which the Government wish to emulate. The Crown Prosecution Service has already begun to draw up guidelines for its prosecutors as to the circumstances in which it will be appropriate to exercise this power of appeal. The Government believe it is better to proceed in this way than to attempt to draft an acceptable test which, while more than the original grounds for opposing bail set out in the Bail Act, can be couched in terms comprehensible to the courts.

As important a reason against this amendment is the fact that it would mean that appeals could not be brought where the concern was that a defendant might abscond while on bail. Your Lordships will not need me to remind the Committee of a recent example where such circumstances existed.

We have what may be called draft guidance for Crown prosecutors on the circumstances in which the prosecution's right of appeal on bail should be exercised. The guidance will emphasise that an appeal should not be lodged as a matter of routine simply because the granting of bail is opposed. The right of appeal will be used only in cases of greatest concern and will be exercisable by any Crown prosecutor but not by agents without specific authority. Factors relevant to the decision to appeal will include the seriousness of the offence and the risk of harm to the public. In assessing the risk that a defendant will fail to appear, commit further offences on bail or interfere with witnesses account will be taken of previous convictions for those matters.

All decisions to appeal will be reviewed in depth by a senior lawyer at the earliest opportunity. There will be power to discontinue appeals. In the event of an appeal being withdrawn the defendant will be released. The Crown Prosecution Service intends to monitor closely the exercise of the right of appeal and cases in which appeals are discontinued. This should ensure a consistent approach to those cases.

I hope that that explanation is somewhat helpful to noble Lords who appear to take a modest interest in this matter.

Lord Bonham-Carter

Before the noble Viscount sits down, would he be so good as to let us know whether these guidelines will be published?

Viscount Astor

Yes, they will.

Lord Harris of Greenwich

As the noble Viscount has told us that a draft is available, can copies of that document be put in the Printed Paper Office so that we can have a look at it between now and Third Reading?

Viscount Astor

I am not sure that there is any document that takes the matter a lot further than what I have already explained to the Committee. However, if there is a document that takes us further, I shall certainly ensure that noble Lords see it before the Report stage.

Lord Williams of Mostyn

The noble Viscount: has said that there is no simple answer. There is of course. It does not need to be in statutory form. A simple answer is the one that I have offered—that there should be no prosecution appeal unless there is a serious risk to public safety or other significant public interest involved.

Lord Mishcon

My silence is afforded to the Committee only in order to give the noble Viscount an opportunity of replying to my noble friend Lord Williams.

Viscount Astor

I am sorry if noble Lords opposite were expecting a reply from me. It would be fair to say that the Government's view is closely modelled on the law and experience in Scotland. That is what we hope we have taken as an example. As I said, the Scots provide their prosecutors with guidelines. This way works in Scotland and that is why we have chosen to follow that here.

Lord Williams of Mostyn

With great respect, I appreciate that the noble Viscount is doing his best. If the law works in a certain way in Scotland, it does not work on a statutory basis; it works on the basis of guidelines. I echo respectfully what the noble Lord, Lord Harris of Greenwich, said—please may we see the guidelines tomorrow before we have to come to a definitive conclusion? I am sure that the law works in Scotland quite well. My suspicion is that it works by and large on the formula that I suggested.

Viscount Astor

I am sorry if I misunderstood the noble Lord. I think that he was addressing what should be in the guidelines as opposed to what is in the Bill. When I replied earlier I thought that he was talking about what should be in the Bill. The noble Lord offers a solution regarding what should be in the guidelines. I can give him an assurance that some very similar form of words to that which he has suggested will be in the guidelines.

Lord Bethell

I wish to make an appeal to the noble Lord, Lord Mishcon. I realise that if he had drafted the Bill he might perhaps have used different words. On the other hand, he has made it clear that he supports the principle of the Bill. He has also made it clear that, while he has put down amendments, none of those amendments is so utterly and totally essential to justice in our land that he is willing to press it in the face of opposition from the Government and from this side of the Committee. Will he therefore consider whether he will accept the assurance given by my noble friend and in the interest of seeing this Bill reach the statute book withdraw his amendment?

Lord Harris of Greenwich

Before the noble Lord, Lord Mishcon, intervenes, perhaps I may make one point to the noble Lord, Lord Bethell, in the most agreeable fashion possible. We are discussing the liberty of the subject. We are talking about situations in which people who have been given bail by a magistrates' court will find themselves in prison because of a decision of the prosecutor. As I and others have made clear already, we are not opposed in principle to the Bill; but what we are saying is that we must have adequate debate. The way in which we are proceeding and have proceeded on the Bill so far has been profoundly unsatisfactory.

Lord Mishcon

As I understand the position, the suggestion that was made by my noble friend Lord Williams has not only been heard by the noble Viscount but he has said—I ask him to correct me if I have misunderstood—that words very similar to those used by my noble friend will be in the guidelines. It would help tremendously, since the word "similar" can be interpreted differently by various people, if he could bring the wording to the House by having it put in the Printed Paper Office before we come to consider the further stages of the Bill. And then, on being satisfied that the words are almost identical to, and certainly having the spirit of, those suggested by my noble friend, we can rest in peace. I would then be able to say to the noble Lord, Lord Bethell, that on this amendment an essential point in my view has been raised but it has been dealt with. I would not like the noble Lord or anyone else to take it for granted that because I am not persisting in these amendments I do not regard them as of the gravest importance.

8.45 p.m.

Viscount Astor

The noble Lord, Lord Mishcon, with his agile legal mind, has rightly said that "similar" can mean many different things. I give him the assurance that when I said "similar" at the Dispatch Box I did not say it as a lawyer but as a straightforward person talking on behalf of the Government. If it would help the noble Lord, I accept the simple and straightforward solution offered by the noble Lord, Lord Williams. I hope that that removes any element of doubt that the noble Lord, Lord Mishcon, has. Guidelines are issued by the DPP. I am afraid that I cannot undertake to have them by tomorrow. I shall do my best but I think that that might be pushing it. I hope that with the categoric assurance I gave to the noble Lord he might be satisfied.

Lord Harris of Greenwich

I thought that the noble Viscount indicated that a draft document exists. I may have misheard him, and if I did so I apologise to him in advance. What we are asking is to have a look at that tomorrow. Many of our anxieties may be removed when we see that document. But given the fact that there is a draft in existence, we are asking only to have a look at it. And if I may say so, given the fact that we have agreed to this most unusual procedure of taking Report and Third Reading within 24 hours of the Committee stage of the Bill, it is not an unreasonable request to make.

Lord Williams of Mostyn

Before the noble Viscount replies—this may be the answer to the problem—I understood his undertaking to be that the formula I suggested—that there would be no prosecution appeal without there being a serious risk to public safety or other significant public interest involved —will be the basis of the guidelines.

Lord Wigoder

If that formula is to be the basis of the guidelines, as appears to be widely supported, does it not make nonsense of the suggestion that the prosecution should have the right of appeal where someone has been convicted and sentenced and then granted bail pending the hearing of the appeal? The guidelines would not be applicable to that situation.

Viscount Astor

A draft of the likely contents has been approved by the Crown Prosecution Service, not finally approved by the DPP. What I tried to say to the noble Lord, Lore! Harris, is that we have established what the guidelines will address rather than there being a document of draft guidelines in existence at this very moment. But I give him that assurance and I will look into the matter and get in touch with him tomorrow.

Lord Mishcon

I do not want to be repetitive but I want to be clear. An assurance has been given on behalf of the Government that the guidelines which affect these appeals will state this perfectly clearly in the same words or similar words as those used by my noble friend Lord Williams. Upon that assurance—I notice that the noble Viscount is nodding his head —I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bethell moved Amendment No. 4:

Page 1, line 13, at end insert:

("(lA) Subsection (1) above applies only where the prosecution is conducted—

  1. (a) by or on behalf of the Director of Public Prosecutions; or
  2. (b) by a person who falls within such class or description of person as may be prescribed for the purposes of this section by order made by the Secretary of State.").

The noble Lord said: I believe I am right in saying that it was this po..nt that was most forcefully urged by the noble Lord, Lord Mishcon, in our debate at Second Reading. Following certain discussions, I have put down an amendment which I hope on this occasion will attract his unqualified support. The point of the amendment takes into account the fact that private prosecutors could bring appeals against bail under the Bill and that this might conceivably cause miscarriages of justice if they were brought in a capricious manner. Therefore, it has been decided that this amendment should limit the bodies which are able to bring prosecutions and to which appeals for bail may be made.

Prosecutors acting on behalf of the DPP would also be allowed to appeal under this provision, or other persons as prescribed by the Secretary of State. That approach observes the principle that individuals with prosecutorial powers bring prosecutions and not the state or public prosecutors. Allowing other types of prosecutor to be added by order allows time for fuller consultation than has proved possible so far with other departments as to who might be given such powers. It also means that the list of prosecutors can, with some parliamentary supervision, be more easily amended according to changes in circumstances. I beg to move.

Lord Williams of Mostyn

We are again grateful to the noble Lord, Lord Bethell, and also for the assistance given by the Home Office in drafting this amendment. It deals with a number of the concerns which we mentioned earlier in your Lordships' House. In particular the noble Viscount, Lord Tenby, is indisposed but I record his continuing and helpful interest in this matter.

The understanding which we have from the Home Office in a letter from the Minister of State dated 18th June of this year is to the effect that, first, the Lord Chief Justice will encourage all presiding judges to make judge time readily available to minimise delays. Secondly, we would anticipate that the number of appeals would be relatively few. Thirdly, the Crown Prosecution Service is, I believe, willing to give an undertaking that it will have a brisk approach to the expedition of appeals. We wish for some indication as to the level of seniority within the Crown Prosecution Service.

My noble friend Lord Mishcon mentions the question of a branch prosecutor. It is said in the letter that they are few and far between. I simply suggest that these appeals too will be few and far between and one would have thought that the prosecutor, if his representations fail as to the grant of bail, should obtain precedent instructions from a branch prosecutor. That is a perfectly simple managerial task. Other than that, we certainly welcome this amendment.

Lord Mishcon moved, as an amendment to Amendment No. 4, Amendment No. 5:

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: I am obliged to the noble Lord, Lord Bethell, and to the noble Viscount that Amendment No. 4 comes before us today. It is an absolutely clear indication of the worthy part that this Chamber plays in revising legislation that this Bill came before us from another place with the support of the Government.

These are the circumstances which would have applied if the Bill had been passed in its original form. A and B start off by being good friends. A has a motor car which he allows B quite freely to use when he, A, is not using it. The two friends fall out. B does not appreciate that his permission to use the car has been withdrawn and he accordingly uses the car. A, now disliking B intensely, brings a private prosecution under Section 12; namely, taking a conveyance without authority. It comes before the court and B says that he wants to take advice as to his defence. The magistrate says that that is all right and releases him on bail, whether it is on his recognisances or whatever it may be.

Mr. A then says that he wants to appeal against the grant of bail. The magistrate has no power whatsoever to do anything other than commit poor Mr. B to prison for 48 hours. That is exactly how this Bill came before this House and those are the circumstances which could have applied. I am sure that Members of the Committee can think of more lurid examples than the one I have just given.

Now the opportunity has been taken as a result of this House, at Second Reading, pointing out some of the grave errors and omissions of this Bill. I wish to express my gratitude—I do not say this pompously —and to say that the lesson has been learnt. If it is a lesson to another place and to the Government, then it is something which brings credit to this Chamber that we did not allow this error to go through.

I have tabled Amendment No. 5, which I would now like to move. It deals with the point which my noble friend Lord Williams mentioned; namely, that there should be an authority at some decent level in the Crown Prosecution Service to whom the appeal may be made. The Minister in his letter was good enough to indicate to me and to the other recipients of that letter, that this was a little difficult because it would add gravely to the burdens which fall on the Crown Prosecution Service.

That indicated to me, and filled me with fear, that it was envisaged by the Government that there would be a great number of these cases where courts are granting bail and where there is going to be an appeal. I hope that that is not right. I thought that this Committee was being assured that there were a number of cases, but not prolific by any means, where in the view of the Crown Prosecution Service the court had obviously gone wrong. I ask that, as part of the rules—otherwise I cannot effectively move this amendment in view of my promise—there will be an assurance that the rules which will be issued will say that the appeal has to be, authorised by a person having at least the status of Branch Crown Prosecutor". I beg to move.

Lord Harris of Greenwich

I recognise that we are in a difficulty. There has been an expectation that we would now be discussing the European Communities (Amendment) Bill. We shall take more time with this matter and I apologise for the fact that we are in this situation. It is inevitable. We are talking about a substantial amendment to the criminal law of this country and no one should underestimate the significance of the issues we are debating.

I begin with a quotation from the noble Lord, Lord Bethell, which relates precisely to the point just made by the noble Lord, Lord Mishcon. At Second Reading on 9th June, he said, on the subject of the amendment he has put before the Committee this evening: I think it right to point out that if any amendment should be passed in this House the effect would certainly be that the Bill would not reach the statute book. There would not be time available in another place to consider any changes made by your Lordships' House".—[Official Report, 9/6/93; col. 1006.] Undoubtedly that was the advice which the noble Lord, Lord Bethell, was given. Notwithstanding that expression of view, I am delighted to say that the points which were raised by the noble Lord, Lord Mishcon, at Second Reading, by the noble Lord, Lord Williams of Mostyn, and the noble Viscount, Lord Tenby, were so substantial that there has apparently been a change of attitude—namely, that amendments to the Bill can be proposed and accepted. I welcome the fact that that has been done. As the noble Lord, Lord Mishcon, has just observed, were that not to have taken place the risk would have been that people involved in domestic and other disputes could, by the simple process of objecting to bail being given, put their neighbours or another member of their family in prison for 48 hours. That is a total absurdity. It demonstrates a very worrying attitude on the part of our Home Office Ministers. Such points should have been seen before the Bill was presented, notwithstanding the fact that it is a Private Member's Bill.

I should like to make only one other point. I do not want to be boringly repetitive, but I very much hope that the noble Viscount, Lord Astor, will pass on what I am about to say to the noble Lord the Leader of the House. The way in which the Bill has been handled has, frankly, been deplorable. As the noble Viscount will be aware, last Thursday there was to be a Government Sittings Motion to ask that all stages of the Bill should be taken today. After I and others had complained, the Government did not proceed with the Motion, and I welcome that. Like others, I agreed to take the Report and Third Reading stages 24 hours later. We would be most reluctant ever—and I repeat "ever"—to agree to procedures of that sort in future. It is no way to legislate. We are a revising Chamber and we must take our responsibilities a great deal more seriously than we have over this Bill—that is, as far as the timescale is concerned. The noble Lord, Lord Tebbit, who has spent a great deal of time speaking on "his" Bill, if I may so describe it, will have to relax a little because we are discussing questions involving the liberty of the subject which require our attention.

I turn finally to the last point that was made by the noble Lord, Lord Mishcon, which related to the level of seniority in the Crown Prosecution Service. I very much hope that the noble Viscount will look at this issue between now and Report stage tomorrow. If, by chance, he is not able to accept the amendment which has been proposed by the noble Lord, Lord Mishcon, I very much hope that he will consider an alternative, such as the requirement for three or four years' seniority; otherwise we shall have the position whereby a Crown prosecutor, with perhaps a week or six months of experience, will be putting people in prison for 48 hours on the basis largely of his own inexperience.

9 p.m.

Viscount Astor

First, perhaps I may advise the noble Lord, Lord Harris of Greenwich, that I said on Second Reading that it was entirely up to your Lordships' House whether your Lordships wanted to table amendments in Committee, at Report or on Third Reading. The way in which your Lordships wished to deal with the Bill was entirely up to your Lordships.

My noble friend Lord Bethell took account of the concerns of the noble Lord, Lord Mishcon, which is why he tabled Amendment No. 4, which the Government support. I turn now to the amendment of the noble Lord, Lord Mishcon, which is an amendment to Amendment No. 4. I am afraid that it would vastly and unacceptably increase the costs of the Crown Prosecution Service. It would be impossible to ensure that a prosecutor of such rank was either present at all magistrates' courts or contactable by telephone at any time to give authority to appeal. Your Lordships should know that in some counties there is only one lawyer of such a rank. I hope that your Lordships can accept that this makes such a requirement unworkable in practice.

The Government recognise the concerns implicit in the desire to see authorisation given at a senior level, but we believe that the prosecutors in the court who are apprised of the facts will be best placed to make a decision on whether to appeal. They will be aware of the risks the defendant might pose if released on bail and of the arguments put by the defence in support of bail.

The Government propose in answer to this concern to ensure there are proper procedures within the Crown Prosecution Service by which senior prosecutors will be able to vet and, if necessary, discontinue appeals.

I hope that your Lordships can accept that the practical difficulties which I have mentioned make it impossible for the Government to accept the amendment of the noble Lord, Lord Mischon, but the assurance that there will be proper vetting procedures within the Crown Prosecution Service addresses the concerns behind the amendment.

Lord Williams, of Mostyn

The noble Viscount's reply addresses the concerns but does not deal with them. The appeals will of their nature be fairly limited. There is no difficulty in having precedent instructions from someone of branch Crown prosecutor level in these rather strange cases where the Crown Prosecution Service has legitimate concerns.

The noble Viscount said that there would be internal vetting or review, but that does not deal with the point that was made by the noble Lord, Lord Harris of Greenwich. that a very inexperienced prosecutor may, by the mere circumstance of raising the appeal, condemn a citizen to perhaps 24 hours' imprisonment while the internal vetting goes on. That simply is not acceptable. It is quite easily dealt with by accepting the amendment or giving an assurance that no appeal will be raised without the authority of someone of at least the status of branch Crown prosecutor. I realise the difficulties about resources and staffing but, with respect, the answer is the one that I have suggested: "Get your authority before you go to court from your branch Crown prosecutor".

Viscount Astor

Paragraph (b) of the amendment tabled by my noble friend Lord Bethell allows the Secretary of State to prescribe by statutory instrument which other prosecutors should have such a right of appeal. That means that the list of prosecutors given the power of appeal can be readily amended if circumstances change but that such an amendment would not be possible if Parliament objects. The prosecution cannot know what the defence will put forward when arguing for bail, so the decision has to be made by the person in court.

Lord Williams of Mostyn

I am sorry to take up the time of the Committee. The answer which the noble Viscount gave in the first part of his reply simply does not deal with this question. It deals with paragraph (a) of the amendment tabled by the noble Lord, Lord Bethell. Of course, the branch Crown prosecutor cannot know the circumstances that will be relied on, but he will know the category of case for which an appeal is legitimate, and precedent instructions can be taken quite simply if, for instance, there is a danger that someone who may abscond may be given bail or that someone who is a dangerous rapist may be given bail. It is simple to deal with that position. I repeat, the first answer that the noble Viscount gave did not deal with that point, nor did it deal with the illustration given of the junior prosecutor who has a rush of blood to the head and by his own unilateral decision condemns someone to imprisonment, even for 24 hours.

Viscount Astor

I believe that I dealt with the substantive issue put by the noble Lord, Lord Williams of Mostyn. I accept that he has asked me to go further. The best thing I can do is to say that I shall obviously consider the matter and be in touch wit h the noble Lord before Report stage.

Lord Harris of Greenwich

If the noble Viscount will do that, it will meet many of our anxieties. The point is one of substance, and I do not want him to go away this evening without recognising that many of us attach great importance to the issue.

Lord Mishcon

I detect a sense of urgency in the Chamber which, unfortunately, has nothing to do with the Bill. In those circumstances, and having heard the assurance that the noble Viscount has given, I beg leave to withdraw the amendment.

Amendment No. 5, as an, amendment to Amendment No. 4, by leave, withdrawn.

On Question, Amendment No. 4 agreed to.

Lord Mishcon had given notice of his intention to move Amendment No. 6:

Page 1, line 15, leave out from ("prosecution") to ("granted") and insert ("made representation that bail should not be").

The noble Lord said: Because of the urgency to which I drew attention, I do not move the amendment. [Amendment No. 6 not moved.]

Lord Mishcon had given notice of his intention to move Amendment No. 7:

Page 1, line 16, leave out ("objection was") and insert ("representations were").

The noble Lord said: The same remarks apply.

[Amendment No. 7 not moved.]

Lord Mishcon had given notice of his intention to move Amendments Nos. 8 to 10:

Page 1, line 24, at end insert ("failing which, the person shall be released from custody and the prosecution appeal shall be null and void.").

Page 2, line 2, leave out ("commenced") and insert ("determined").

Page 2, line 3, leave out from ("excluding") to ("from") in line 4 and insert ("Good Friday, Christmas Day arid Sundays").

The noble Lord said: Unfortunately, the same remarks apply.

[Amendments Nos. 8 to 10 not moved.]

Lord Bethell moved Amendment No. 11:

Page 2, line 17, at end insert:

("( ) The power to make an order under subsection (1A) above shall be exercisable by statutory instrument and any instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Remaining clause agreed to.

House resumed: Bill reported with amendments.