My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 19 [Extension of kinds of secure accommodation]:
§ Baroness David moved Amendment No. 12:
Page 12, line 25, leave out ("or a registered children's home").
§ The noble Baroness said: In moving Amendment No. 12I shall speak also to Amendments Nos. 13, 14 and 15. The amendments would limit the type of organisations 135 to which local authority secure accommodation can be contracted out to voluntary organisations and would rule out the private sector. That is, first, because the private sector has no experience of or expertise in dealing with disturbed and vulnerable young people. Secondly, at present young people in care who are placed in local authority secure accommodation are regularly reviewed to see whether they can be moved to non-secure provision. If secure units are run by private sector organisations with a direct financial interest in maintaining a high level of occupancy, that will reduce the incentive to move children to other types of provision when that has become appropriate.
§ If secure accommodation is open to the private sector there are four points that I should like to make. First, the children are likely to be unnecessarily locked up. Research commissioned by the Department of Health in the 1970s and 1980s on secure accommodation concluded that the more secure placements available, the more children will be locked up. There is no determinable limit to the demand for secure places. That is because large numbers of teenagers in care are at some risk either to themselves or to others and thus meet the legal criteria for a locked placement. We have to admit that such a placement is an attractive option for harassed social services because the child is then apparently safe and the social workers protected from the possibility of public scandals. The formal checks on locking children up through court hearings and social services reviews are necessary but inadequate safeguards. The expense of secure placement, the shortage of places and the strict admissions policy of the units themselves also operate as checks against over-use.
§ If the private sector was encouraged to run secure accommodation, those three obstacles could be removed. No doubt a private unit could offer very competitive prices, but in order to survive financially it would have to maintain full occupation. Given the fluctuation in demand, that could mean having to accept unsuitable children; for example, a child from a distant part of the country or a child exhibiting a minor form of disturbance or a child who could be kept—albeit at greater expense—in open accommodation.
§ Secondly, the welfare of children will be less protected in a private lock-up. A secure unit should be part of a continuum of community-based services. Local authority secure units already have some difficulty in maintaining links with other services within the authority. That difficulty would be intensified in the private sector. Even now, some secure units encounter problems with recruiting suitably qualified staff. Private providers have no track record in this business and will, for cost reasons as well, be likely to employ less qualified, or fewer, staff. Profits will have to come from somewhere. That is why it is so important that we should see the specification about which we talked yesterday before we reach the next stage. By their nature, secure units are vulnerable to scandal and abuse of power. The safeguards within the statutory sector will be absent within the private sector.136
§ Thirdly, as regards making profits from the secure units, however beneficial their objectives in practice, secure units are nonetheless viewed as punitive by many young people placed in them. All are placed in those units as a result of a court order which the Government introduced in 1982 in order to comply with the European Convention on Human Rights. The conven-tion provides that all restrictions of liberty, even when the individual agrees, must be subject to judicial review as one of the most serious interventions on human rights. That is the main reason why the voluntary sector has to date declined to run secure accommodation.
§ Should profits be made from a serious breach of human rights? We think not. Some companies have argued that it is essential to make a profit in order to plough back money for developing facilities. That is a fallacious argument. If the company was using all its profits to develop services, it could legitimately become a non-profit-making voluntary organisation. The argument is used to deflect attention from the personal profits made by the managers; and given the fact that private secure units, like some existing children's homes, do not have to be registered companies, there may be no way of discovering how great a profit is being made from locking up children.
§ Fourthly, secure accommodation is often ineffective. Although preferable to penal lock-ups, secure accom-modation must be treated with as much caution as any other form of custody. All the research suggests that secure accommodation is as ineffective as the rest in curing children's problems. Aggressive children are made more aggressive; persistent offending continues; self-abusive children need high staff-child ratios and not locks and bars; and absconding children need better open provision. On the negative side, placement in any sort of lock up would institutionalise, criminalise and stigmatise children. All forms of locking up children must be restricted to the absolute minimum necessary. Private provision must be highly suspect. I beg to move.
§ Baroness David
I am sorry to interrupt the noble Lord but I am finding it rather difficult to hear him. I wonder whether the noble Lord could speak up.
§ Lord Renton
I apologise. I had thought that I was reasonably audible. As I was saying, yesterday the noble Baroness and my noble friend Lady Faithfull were very anxious that children should ever have to spend a night in a police cell or in any kind of accommodation provided by the prison service. By the provisions that they have put into Clause 19 (which amplify the provisions of previous Children and Young Persons Acts) the Government make it less likely that a police cell will ever have to be used for that purpose.
If the amendments were accepted—amendments which enable those concerned to provide more secure accommodation for children under those Acts—then the very minor risk of a child occasionally having to spend a night in a police cell would become greater. Therefore, I do not expect my noble friend Lord Ferrers to welcome the amendments.
§ Baroness Faithfull
I rise to express my support for the amendment. Registered children's homes, as the noble Baroness explained, are profit-making homes for children. It is true that such homes are inspected by the social services departments under the umbrella of the Department of Health—I understand the point made by my noble friend Lord Renton—but voluntary homes run, for example, by Barnardo's are staffed by people with experience and knowledge of such children. They could supply the kind of places when there is an emergency to prevent a child having to be put in a police cell.
I wonder whether private homes have the experience and the background to deal with such children. As has been said, they are profit-making. It is possible that they might not want to lose such a child. Therefore, it is most important that they should be excluded from taking children.
My noble friend Lord Renton was, if I may say so, very far seeing in his remarks. He said that he did not believe I would want to welcome the amendments. He is quite right. The noble Baroness, Lady David, and my noble friend Lady Faithfull referred to the business of making profits from locking up children. I believe that that is a very strident form of expression. If children are to be locked up, such a service must be provided. I believe that most Members of the Committee agree that, regrettably, there are some children who have to be locked up for the benefit of the remainder of the public, irrespective of who carries it out. That service is either provided by the state or the private sector. As I explained yesterday, the important thing is not who actually does the locking up but the service that is provided. If it is possible for the private sector to provide a service which is better and cheaper to the taxpayer than the public service, I do not see that that can be wrong.
Both the noble Baroness, Lady David, and my noble friend Lady Faithfull, referred to making profits from locking up children. If that argument is used, I wonder whether it is any worse than those who make a living from looking after prisoners. Indeed, it could be said that many people in the prison service make their living by locking up prisoners. I believe that to be a most emotive expression.
The fact is that if we are going to have these places, we want to ensure that the regime will be proper and correct for the children; that the children will be looked after properly, and will be helped to get back on to the rails. The noble Baroness, Lady David, referred to the European Court of Human Rights. She said there had been breaches in secure accommodation. No breaches have been reported to us. There are strict criteria for the placement of children under the Children Act 1989 which necessitate court approval and which prevent undue use of the powers to place children in secure accommodation.
It is expected that the premises will meet the inspection requirements and the quality of care standards which are expected of the local authority sector. It is necessary to obtain the Secretary of State's approval for them. The children will have to meet the 138 strict criteria for admission to secure accommodation which are set down in Section 25 of the Children Act 1989, and the local authority will retain responsibility for placing the children and determining the length of stay.
The voluntary organisations such as Barnardo's or the National Children's Home have done a great deal in the area of looking after children, and the private sector has for many years made a valuable contribution to our child care services. Many of the organisations have a good record of providing open residential accommoda-tion with good care and a good regime. There is a wealth of experience and a wealth of expertise in caring for difficult and disturbed young people. It seems only logical that we should be able to tap into this resource so as to facilitate good care in secure settings.
This part of the Bill is an enabling provision. The local authority will remain the placing authority and it will retain the responsibility for deciding how long any particular placement should last. It will be up to the local authority therefore to satisfy itself about the all-round suitability of a provider. It follows that no arrangements will be made and no agreement will be reached until there has been full consultation between the responsible local authority and the private interests involved.
The secure provision by the private sector will of course be subject to the same strict criteria which apply now to local authority secure accommodation. Following consultation, the Secretary of State has made her expectations of the independent sector quite clear. Private homes will be expected to provide secure facilities, management, and care to the same high quality and rigorous standards which are required of local authorities who provide secure facilities.
The same inspection requirements will apply. No private individual or organisation will be allowed to operate a secure unit without the express approval of the Secretary of State—both in advance and during its period of operation. Given these requirements, I think that the private sector should be allowed to make a substantial contribution, alongside local authorities, towards the provision of this secure accommodation.
§ Lord Brookes
Will the Minister, for whom I have great respect, accept that there is a permissible distinction between service to the social structure and the state and service to an accountant? That is the essence of the point which is being addressed.
The noble Earl, in replying to the mover of this amendment, did not address the question of the very specialised training, and—equally important-—the actual experience required of the staff of whatever accommodation is provided for these difficult and in some cases dangerous young people. The voluntary bodies which are involved in this business, such as Barnardo's and the National Children's Home and others, have precisely that experience. Perhaps the Minister would like to say something about the staffing of the centres that are to be provided by the private sector.
§ Lord Elton
My noble friend would do much to reassure those of us who feel there may be a place for the private sector in these activities if he could address with more sympathy the reservations which they show and the rather more sharp reservations of those who feel there is no such place. I tried yesterday to demonstrate that there is a difference of significance between institutions which are run for profit and institutions which are run out of the public purse. My noble friend almost touched on that matter. If a person in charge of an institution which is operated out of public funds has the choice of having 25 or 24 inmates in it, and he is working to a budget, it is attractive to have 24 rather than 25 because that leaves some of the budget unconsumed. If on the other hand, the institution is being run for profit and the choice is between having 24 and 25 inmates, if the institution is run on a normal accounting basis, having 25 inmates rather than 24 is more attractive because it gives one more item on which a profit may be made.
I do not say that it is iniquitous that a profit should be made. I accept what my noble friend says without reservation. But it does then mean that one must look at both halves of the equation which he put to the Committee. He asked whether the private sector can deliver a service which is both cheaper and better. We can see what is cheaper from the balance sheet at the end of the year, just as a company can see what is most profitable; but what is better has to be ascertained by some form of inspection or transparency. We addressed this yesterday without too much success. If my noble friend could have a greater regard for these anxieties and guarantee more transparency or greater supervision, he would do much to take the enthusiasm out of the pursuit of this amendment.
§ Lord McIntosh of Haringey
I wish to follow the point that the noble Lord, Lord Elton, has just been making and with which I entirely agree. The Minister has sought to draw an analogy between the use of the private sector for this kind of accommodation and the use of the private sector in prisons. Some of us have both principled and other objections to the use of the private sector in prisons, but I do not think the Minister would deny that prisons do not on the whole have the problem of under-occupation, and that therefore the problems as between 25 and 24 people, to which the noble Lord, Lord Elton, referred, would not apply to the Wolds or to Blakenhurst, or to any other potential future private prison. However, the problem of the profit and loss account requiring high occupation levels applies strongly to the institutions that we are talking about, just as it applies to bail hostels, for example, which we shall discuss later. To that extent surely the analogy which the Minister has drawn falls down.
§ Baroness David
I wish to follow up this one point. The noble Lord, Lord Elton, said we will know what is cheaper by the balance sheets. But as I pointed out when I spoke, if the private secure units do not have to be registered companies, there may be no way of discovering how great a profit is being made.
I hope that the Committee will not run away with the general idea that because an establishment happens to be in what is termed the public sector it is necessarily good and inherently good. The awful truth is that there are both good and bad establishments within that sector. I get an amazing sense of déjà vu in listening to this debate because I had not expected to come to this Chamber to find myself taking part in the sort of discussion that has gone on in council chambers across the breadth of the land for the past five years. But the fact of the matter is that what we are looking for is an establishment which has a proper regime and which will do a good job in the best interests of the public at large. Whether that happens to be in the public or private sector is certainly not an issue on which I feel strongly. What is quite certain is that from all the evidence that we have in local government, the private sector can do it at least as well as—and in many cases better than—the public sector; and there is a great deal of experience to show that is so.
My noble friend Lord Dixon-Smith is entirely right in saying that there is good and bad in the public sector, and that is a fact. Over the years there have been many people in this Chamber who have been prepared to criticise the public sector and to ask why it is not better. We have tried to make it better and I think we have succeeded. One of the ways in which we have made it better is to incorporate the use of not only private sector finance but also expertise. There is no monopoly of expertise in this area attaching only to government or to public sector employees, although the value of what they do is considerable.
I agree with the noble Lord, Lord Brookes, that there is a difference between someone who is engaged in public service and someone who is engaged as an employee of a company. People say that there is something wrong with making money out of locking up children. The point that I was trying to make—and this is where the noble Lord, Lord McIntosh, misunderstood me slightly—was that in the public sector people make their living looking after prisoners. It could be said that that is just as bad as making a profit out of looking after prisoners or young offenders. Therefore I do not accept the analogy that it is wrong to make a profit. Any private organisation which is involved will of course have to make a profit; otherwise it will not survive. That is not the case in the public sector because there is no profit regime.
My noble friend Lord Elton said that if only I could be a little more sympathetic, that would take a little of the steam out of the amendment. I try to be sympathetic to the cause espoused by my noble friend and others. He was concerned that if a home had only 24 people the company would not make as much money as if it had 25 people. The number of people who are placed in a centre or home will not be the responsibility of the company. It will be the responsibility of the courts or the local authorities which place people in the homes. In the case of the secure training centres which we were discussing the other day there will be an arrangement whereby the Government obviously have to ensure that a certain 141 level of expenditure will be available to the centre because if there were only three people in the centre, which had to be run on the basis of holding 40, that would not be workable. Therefore, some arrangement has to be arrived at. That is a perfectly normal part of a contract.
The noble Lord, Lord Hunt, said that the establishments require specialised training and staff. He is quite right. But there are many people who are specialists in this area. In relation to secure training centres, which I recognise are slightly different, we suggest that it will be up to the organisations to obtain the necessary staffing. If they do not achieve that level of staffing, they will not win the contract. With regard to these particular establishments, I am bound to tell the noble Lord that, before he approves a home, the Secretary of State will have to be satisfied about its management and staffing and about the staffing of the secure units.
Over the past two years the Secretary of State has allocated more than £30 million to a training support programme which is geared to the many needs of the heads of homes and of staff. Private homes will be subject to the same statutory safeguards as those run by local authorities and voluntary organisations. Those safeguards will include the Secretary of State for Health's approval of secure units, the 1991 children's homes regulations, the secure accommodation regula-tions 1991 which relate to the procedural safeguards of placements and the SSI inspections. Ultimately, the Secretary of State can close homes which are unsatisfactory.
I tried to say yesterday, I said again today, and I repeat that I understand the anxieties which were expressed by those who feel that we should not put children into homes which are badly run or badly staffed. The point that I tried to make, and which I suggest to the Committee is worth considering, is that what really matters is not who provides what is provided, but what is provided. What is provided is a matter for the regulations and for the specification, and will be subject to inspection and safeguards. Whether it is provided by a private interest, a local authority or a charitable organisation is relatively immaterial. The important point is that the standards are satisfactory.
§ Baroness Masham of Ilton
Perhaps I may ask the noble Earl a question. Who will be responsible for the training of the staff, and where will they be trained, whether it be a public sector or private sector home?
It will be up to the home concerned to arrange the training of staff. The Home Office will have to be satisfied that the staff are trained up to the appropriate standard.
§ Baroness Fisher of Rednal
I listened with great interest to the Minister when he listed the various organisations which will make sure that staffing is appropriate. I did not hear him mention teachers and the education which the children will receive. As the noble Earl will be aware, teachers who are guilty of any misconduct have to be reported to the Department for Education. One would like to be sure that the 142 regulations governing the safety of the children under various Acts of Parliament will apply to teachers brought into the secure units and also that those teachers will come under the same jurisdiction as teachers in local authority or any other schools.
§ Lord Harris of Greenwich
Perhaps I may say a few words on this subject. First, perhaps I may return briefly to what was said during last evening's debates, particularly in relation to the question of who would undertake the inspection. The noble Earl very kindly said that he would pay attention to everything that had been said in the debate. He will recall that a great deal of anxiety was expressed about the inspection, who was to undertake it, the rather curious situation of two government departments being involved in the inspection, and the consequences of an adverse report. I should be grateful if the Minister would undertake to write to us before Report stage with any views he may have on what was said last night.
Another point which the noble Earl raised yesterday —and there was a faint echo of it in what he said this afternoon—was what he would no doubt describe as the inherent unreasonableness of those who have criticised the quality of some of the public institutions holding inmates. He said that there has been criticism but now this new Jerusalem is arriving with the private sector being involved. Of course we have criticised the position in public sector prisons because many public sector prisons were built more than a century ago. The two private sector establishments—the Wolds and Blakenhurst—were designed by the Home Office. Of course the physical facilities in those establishments are admirable, as one would expect. One is not comparing like with like. Of course we shall continue to complain about the conditions in prisons such as Wormwood Scrubs and Wandsworth, but there is no comparison between the situation in those establishments and in the two new private sector establishments which have all the advantages of being purpose built by the Home Office.
The noble Earl went on to say that these facilities, both in relation to prisons and to the new secure units for children, will be better. The implication is that we shall receive better value for money. But what evidence is there that that is true? There is none whatever. We are not allowed to know the financial arrangements underpinning the Wolds and Blakenhurst. As I pointed out last night, there is an extraordinary situation in relation to Blakenhurst, where there was a substantial disturbance. The Home Office monitor wrote a highly critical report about what had happened at Blakenhurst. The provider of the service at Blakenhurst was fined. We are not even allowed to be told the level of the fine.
The noble Earl must recognise, as must the noble Lord, Lord Dixon-Smith, that when it is suggested, as it is consistently, that we are getting better value for money, there is no evidence that that is so because we are denied the financial information upon which to form a judgment.
I can give the noble. Baroness, Lady Fisher of Rednal, the assurance which she requires. The people who teach in these establishments will be subject 143 to the same inspections, constraints—if that is the right word, and it is not—and standards as any of the other people. It may be that they come under a different department—it will be the department which covers education—because that is where their responsibilities lie. There is no question that those teachers' standards will not be to the same standards of the others who operate those homes.
§ Baroness Fisher of Rednal
Perhaps I did not phrase the question correctly. It was not the standards I was considering. Teachers are often removed from the list on the ground of misconduct. That means that they can never teach again. The point I sought to make was that those people are on a register. Children will be sent to the centres. I believe that everyone should see that those teachers have not been put on the register.
I believe that I can give the noble Baroness that assurance. However, I should like to confirm it. Perhaps I may write to her giving full details of such an assurance. The noble Lord, Lord Harris of Greenwich, asked whether I would take up the points which the Committee made last night; I will. It would be wrong if I were to say that I have given the matter a lot of consideration since then and this morning because I required a certain amount of time in which to sleep. However, I shall certainly ensure that those points are taken on board. I shall write to the noble Lord before the next stage.
The noble Lord was slightly unfair when he said that the Government now say that we have come to a new Jerusalem where everything will be wonderful. We have never taken that view; the noble Lord, Lord Harris, knows that. All we have sought to do is to say that there is no reason why only bodies which exist now should be capable of looking after these young people. We want to see new ideas, new thoughts and possibly new regimes introduced.
I can understand the noble Lord's apprehension, and indeed that of my noble friend Lord Elton. They ask: if there is a new scheme, are we sure that we shall achieve something better? I can give no guarantee. No one can guarantee the future. I can understand the concern of the noble Lord and other Members of the Committee that what they are getting is better, or as good as, the current system. I shall take those matters into account and see whether there are ways in which we can meet those concerns to the satisfaction of the Committee.
§ Baroness David
That last statement was rather more reassuring than some we have heard. I thank the many people who supported my amendment. The noble Earl must realise that there are still many anxieties about the contracting out to the private sector. As the noble Lord, Lord Elton, said, there must be a temptation to keep the places full in order to make a profit. I do not say that making a profit generally is a bad thing. We are anxious about profit being made from locking up children. That is why there is such anxiety about the standards of inspection, and so on. We hope that we shall receive reassurance on that issue.
144 The noble Lord, Lord Renton, referred to police cells, and so on. We must remember that we already have 290 local authority secure accommodation places. There will be 170 more. I believe what I have been told: that if we had 40 or 50 more such places, and the spread around the country geographically was better, there probably would be enough places and we should not need the five units for 40 children in each.
There are still great anxieties. I moved yesterday that Clause 7 should not stand part of the Bill. I did not press that to a vote. This amendment covers some of the ground that I covered then. At the next stage we shall come forward with amendments which cover both Clause 7 and the matters I have raised today. We shall be only too pleased if voluntary organisations such as Barnardo's or the National Children's Home will run those centres. There will be no objection whatever; in fact we shall be pleased. Such bodies will be the best people to run them if we have to have more units.
The Minister concluded that he would give us reassurance and would write to the noble Lord, Lord Harris. I hope that that letter may be put in the Library as we are all interested in the inspection issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 13 to 15 not moved.
§ 3.45 p.m.
§ Earl Ferrers moved Amendment No. 16:
page 13, line 20, after ("expressions") insert (", other than "local authority",").
§ The noble Earl said: Amendment No. 16 is simply a technical amendment to remove an ambiguity in Clause 19. I beg to move.
§ On Question, amendment agreed to.
§ Clause 19, as amended, agreed to.
§ Clause 20 agreed to.
§ Baroness David moved Amendment No. 17: After clause 20, insert the following new clause:
Restriction on remand to prison service custody. (" In section 23(5) of the Children and Young Persons Act 1969 for paragraph (a) there shall be substituted the following paragraph:
- "(a) he is charged with or has been convicted in the current proceedings or on a previous occasion of a violent or sexual offence, or is charged with or has been convicted in the current proceedings of an offence punishable in the case of an adult with imprisonment for a term of fourteen years or more,". ").
§ The noble Baroness said: This new clause is intended to clarify the criteria for remanding young people aged 15 and 16 to adult prison and remand centres. It is generally agreed that such remands are undesirable and the Government are committed to phasing them out as soon as sufficient local authority secure accommodation is available.
§ In the meantime, the Government decided in 1991 —a very short time ago—to change the criteria for such remands, which are contained in Section 23 of the Children and Young Persons Act 1969. Those criteria were changed by the Criminal Justice Act 1991, which provided that a juvenile could only be remanded to prison service custody when either charged with, or 145 convicted of, a violent or sexual offence or an offence punishable in the case of an adult with imprisonment for 14 years or more, or he has a recent history of absconding from local authority accommodation and is charged with or convicted of an offence committed while remanded to such accommodation. In addition the court must be of the opinion that remanding the juvenile to prison service custody is necessary to protect the public from serious harm.
§ In the case of Re C (22nd October 1993) the Divisional Court held that a 15 year-old boy charged with theft and other non-violent offences, none of which had a maximum penalty for an adult of 14 years or more, could be remanded to prison service custody because he had previously committed a domestic burglary for which he had received a conditional discharge. Domestic burglary carries a maximum penalty for an adult of 14 years and the Divisional Court held that the phrase,
"is charged with or has been convicted of … an offence punishable in the case of an adult with imprisonment for a term of fourteen years or more"
§ could include a non-violent offence of which he was convicted on a previous occasion, although he had had only a conditional discharge. Therefore the defendant was eligible to be remanded to prison service custody because of his earlier offence of domestic burglary, even though the offences with which he was now charged had lower maximum penalties.
§ It is difficult to believe that that was the intention of the changes to the criteria made by the Government in 1991. The express intention of the changes was to reduce the number of juveniles remanded to adult prisons and remand centres to cases where there was a genuine risk to the public. The Divisional Court's interpretation of the statute means that a young person could be remanded to prison service custody because of an offence of burglary or handling stolen goods (both of which have 14-year maximum penalties for adults) of a minor kind committed when he was 11 or 12. The amendment therefore inserts the words "in current proceedings" to make it clear that—except in the case of violent or sexual offences—the young person must be currently charged with or convicted of an offence with a 14-year maximum penalty to be eligible for a remand to prison service custody.
§ I consider this a reasonable amendment. I hope very much that the Minister will see fit to accept it. I beg to move.
§ Lord Renton
Before the noble Baroness sits down, perhaps she will explain this matter. She says that the proposed amendment refers to the person being convicted "in current proceedings" but the provision continues, "or on a previous occasion". Will she be so kind as to clarify that?
§ Baroness David
The case I described which caused the anxiety was when the previous offence of burglary carried the possibility of a prison sentence. However, the young person was only given a conditional discharge. We agree that if it is a violent or sexual offence, then the offender can be committed to custody. What we are anxious about, however, is that we wish to 146 include the words "in the current proceedings", as in the proposed new clause. We want it to be absolutely clear that the young person is charged with something which carries that penalty. I hope that I have made that clear. I beg to move.
§ Lord Renton
The noble Baroness has a point. She is asking the Government to be consistent with their previous legislation. At first sight that is a good aim in itself, especially in those circumstances However, I am not quite sure that what has been laid down by the previous legislation is quite enough. One certainly agrees with the noble Baroness about the young person, at present aged 15 or 16, or under the powers which the Government seek, at 14, perhaps to be extended later to 13 or even 12.
If the young person has been convicted, for example, of frequently driving motor cars without the owner's consent to the danger of the public, without actually causing violence, that does not carry imprisonment with a maximum sentence of 14 years. If I remember rightly, the maximum is two years.
There are cases—rare enough but notorious—of teenagers stealing motor cars, driving them round, joyriding; sometimes committing violence with them but quite often not. I should have thought that the court ought to have the power to remand young people in custody if such offences become persistent. Under the noble Baroness's amendment, that would not be possible. A fair point which she makes is that neither would it be possible under the amendment which the Government made in the 1991 Act.
I should be interested to hear what my noble friend Lord Ferrers has to say, but in all such circumstances we need to ensure that the court has the power and the discretion to make such orders for remand in custody to protect not only the public but the young person from his own folly.
§ Baroness Faithfull
We agree with my noble friend Lord Renton, but we disagree as to where the young offenders should be remanded. We are saying that they should not be remanded to prison but to local authority secure units.
My noble friend Lady Faithfull is always on the ball about such matters but I think that she is wrong in her interpretation. As the Committee knows, the courts will have power, when sufficient accommoda-tion is available, to remand 15 and 16 year-olds to local authority accommodation with a security requirement when certain conditions are met. Those include the cases where young people are charged, or have been convicted, of violent or sexual offences; or have been charged with, or convicted of, an offence carrying a maximum penalty of 14 years' imprisonment. Those are the conditions where the sentence can be given.
On top of that, the court must be satisfied that there is a need to protect the public from serious harm from the juvenile. Clause 20 will make 12 to 14 year-olds eligible for a secure remand. We had always assumed that the words "had been convicted of referred to one particular occasion. However, the divisional court ruled that the phrase in the existing criteria "has been 147 convicted of" can refer to previous convictions as well as a conviction in the current proceedings. As I understand it, the reason for the amendment of the noble Baroness, Lady David, is to deal with that. Her amendment would restrict the scope of that decision of the divisional court by allowing courts to remand 12 to 16 year-olds to local authority accommodation with a security requirement in cases where the juvenile has been convicted of a violent or sexual offence on a previous occasion, but not where the previous conviction is for an offence carrying a 14-year sentence; for example, burglary.
It is an important point, and in the light of that and of the noble Baroness's remarks I have some sympathy with her amendment. If she will allow me, I should like to consider whether the amendment addresses the issue in quite the way that the Government consider appropriate. If necessary, I am prepared to bring forward our amendment at a later stage. If the noble Baroness will be kind enough to withdraw her amendment, if she sees fit, I shall give the matter consideration and ascertain whether we can meet the points she makes.
§ Baroness David
I am grateful to the noble Earl and of course I agree to withdraw the amendment. As the noble Lord, Lord Renton, said, there seems to be an inconsistency which appears to have raised questions. I am happy to accept the noble Earl's offer and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 21 and 22 agreed to.
§ Baroness David moved Amendment No. 18:
§ After Clause 22, insert the following new Clause:
Duty of local authority to provide bail support schemes
(".—(1) It shall be the duty of every local authority to provide, or to make arrangements with such persons as seem to them to be appropriate for the provision by these persons of, "bail support schemes", that is to say arrangements for the support and supervision of children and young persons granted bail in criminal proceedings.
(2) The Secretary of State may, with the consent of the Treasury, make such grants as he considers appropriate to local authorities in connection with their duties under this section.").
§ The noble Baroness said: The new clause alters the rules governing the detention of arrested juveniles after charge and before they are brought to court. The Criminal Justice Act 1991 amended Section 38(6) of the Police and Criminal Evidence Act 1984 to provide that juveniles cannot be held overnight in police detention unless a custody officer certifies, first, that it is impractical to transfer the juvenile to local authority accommodation or, secondly, where the juvenile is aged 15 or over, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm by him. "Serious harm" is not limited to violent or sexual offences. The government amendment changes the minimum age in the second criterion from 15 to 12.
§ The new clause is disturbing. It is undesirable that children aged 12 to 14 should be held overnight in police cells when they could be transferred and held overnight in local authority accommodation. Before the 148 rules were changed in the Criminal Justice Act 1991, young people of this age were not infrequently held in police custody in circumstances where local authority accommodation was available.
§ NACRO has provided two examples which occurred in the same London borough in two successive weeks in 1989. The details are readily available because they were assembled in 1989 for a possible judicial review case, but they are typical of what often happened before the 1991 Act.
§ On 8th June 1989, A, aged 14, was arrested, charged and detained by police. A senior social worker of the social services department spoke by telephone that afternoon to the custody sergeant and was informed that it was likely that the boy would be detained in police custody unless secure accommodation was provided for him by the local authority. Later, a superintendent insisted that, as a secure placement was not available for the boy, he be kept in police custody overnight. At juvenile court the next day, the boy was granted conditional bail on charges of conspiracy to pervert the course of justice, criminal damage and an offence under the Telecommunications Act 1984.
§ On 20th June 1989, B, aged 13, was arrested by the police on matters relating to criminal damage and burglary. In discussions between social workers and police officers the police insisted that the boy would be detained overnight in police custody unless a secure care place was made available.
§ Following B's production at court the next morning, the boy was remanded into the care of the local authority. He was then placed in the open unit of a regional remand and assessment unit. It is disturbing that the police should be able to detain overnight in a police station a juvenile as young as 12 even though local authority acommodation is available for him or her, particularly in cases when bail or a remand to non-secure local authority accommodation is the most likely course when the child appears in court. If the provision of more local authority secure places is considered necessary to ensure that a place will more often be available at short notice in such cases, that is the direction in which we should go rather than seeking to solve the problem by a greater use of police custody, which is so clearly inappropriate for such young people.
§ Yesterday and today we all said how unsuitable police custody detention in police cells is for young people (juveniles) and more particularly for those aged 12 and 13. As the noble Lord, Lord Elton, said yesterday, these are just children. So I hope that the Minister will again be kind and will be willing to look at this favourably. I beg to move.
§ 4 pm
§ Baroness Mallalieu
I am not entirely clear whether the noble Baroness's remarks go to opposition to the question that Clause 23 stand part of the Bill or to Amendment No. 18 standing in her name. Perhaps I might—
§ Baroness David
I am very sorry. I have made a terrible mistake and read the wrong brief. I do apologise. Can I start again?
I am most grateful to the noble Baroness for coming to my rescue as well as to the rescue of her noble friend. I thought that she was possibly referring to clause stand part as opposed to Amendment No. 18. It is an easy mistake and we all understand it. I am quite sure that the noble Baroness would like to deliver herself of what she intended to say as opposed to what she did say. We shall all understand.
§ Baroness David
I do apologise to the Committee. Thank you for treating me so kindly and generously. I hope that someone else will make that speech next time. I suppose that I am not used to doing three amendments right on top of each other. I found that a bit overwhelming. However, I shall try again.
This is a new clause imposing a statutory duty on local authorities to provide bail support schemes for juveniles. Bail support schemes, which provide support and supervision for defendants on bail, have grown in number in recent years and provide an important means of reducing the likelihood of offending during the crucial period awaiting trial. At present most such schemes work with juveniles, although I am pleased to say that the number working with young adults is now growing. They use a range of approaches which encourage young offenders to comply with the conditions of bail and help them to gain access to constructive opportunities and activities.
The methods used include regular officer reporting; placements with volunteers during the evening and at weekends; monitored attendance at youth activities; the monitoring of school attendance; programmes designed to reintroduce juveniles to school, or the negotiation of specialist educational provision; assistance with employment problems; involvement in youth training schemes; participation in supervised activity programmes; and work with families to help resolve conflicts, to ensure a continuing home base for the young person and to involve parents in taking more responsibility for their children's behaviour. Additionally, in some areas curfews, supervision throughout the day and regular daily reporting are used. The great advantage of bail support schemes is that constructive work with the young person begins during the bail period. It is not put off for weeks or months until the case has been heard. This early intervention can be crucial in stopping the cycle of reoffending.
Unfortunately, many areas do not have bail support schemes. A survey carried out last year by NACRO of 103 social services departments found that 30 of those authorities had no bail support arrangements at all for juveniles in their area and a further six had such arrangements in only part of the area.
In 1992 the Home Office announced that, over a three-year period beginning in March that year, it would make available £8 million for bail support programmes of various kinds. However, that was mainly aimed at schemes run by the probation service for adult defendants.
150 At present local authorities are under a statutory duty to provide certain services for young offenders. They are also under a statutory duty to provide intermediate treatment facilities. When Section 61 of the Criminal Justice Act 1991 is implemented, they will be under a statutory duty to provide secure accommodation. We are saying that the prevention of offending on bail is so important that there should be a similar statutory duty in relation to bail support schemes. I beg to move.
§ Baroness Mallalieu
Public anger about young people who commit crimes and are released on bail by the courts to commit further offences while on bail is both understandable and justified. Getting into trouble in the first place usually happens because things have gone wrong at home or at school, or because the youngster has got mixed up with other difficult young people in the neighbourhood.
Bail without guidance, without support and without teeth for these young people often simply returns the offender to the same community and the same problems, but with the additional worry of a pending court appearance for the period leading to his trial, which may be anything up to a year, particularly if his case goes to the Crown Court and is contested.
The alternative to bail is often a remand in secure local authority accommodation, which the noble Earl said last night (if I remember him correctly) costs between £1,500 and £3,000 per week per child.
If local authorities are to be obliged by statute to provide secure accommodation, surely it makes sense to oblige them, too, to provide these very much cheaper schemes which are designed to prevent, where possible, the drastic step of removing a child from his home, his family, his school and his community even before conviction. Such schemes, where they exist, tend to be patchy and tend to be aimed mainly at adult offenders. The monitoring of behaviour, to which the noble Baroness has already referred, the monitoring of attendance at school or training programmes, help and advice for the possible offender and his family, even curfews with repeated checks at night are all practical steps which can be taken to make bail work and to prevent reoffending. Surely it makes sense to give statutory encouragement to local authorities, which will have to provide secure accommodation when Section 61 of the 1991 Act is implemented, to provide this considerably cheaper alternative too. I support the amendment.
§ Lord Milverton
I should probably like to support this amendment, if, as has been said, positive help is to be given while a young person is on bail. As the noble Baroness, Lady Mallalieu, said, it is not much good their being on bail if they are not exercised (shall we say?) in a positive way. So long as that is possible, and their energies and minds are used in such a way as to be of help to them, then I should have thought that this is a reasonable amendment.
I can understand the concern of the noble Baroness, Lady David, about bail support; and indeed that of the noble Baroness, Lady Mallalieu. Bail support schemes have an important part to play in the 151 arrangements for the support of children and young persons who are granted bail. Guidance from the Home Office and the Department of Health in March 1992 encouraged local authorities to establish these kinds of schemes.
According to the most recently published survey, which was conducted by the National Association for the Care and Resettlement of Offenders, as many as 78 local authorities have made bail support available in their areas. There would seem to be no evidence from this that local authorities are avoiding their responsibili-ties in this respect. Of course, the voluntary sector also plays an important part in providing bail support, and the number of such projects is growing.
The Home Office is devolving to local probation services the funds which have been made available for grants to the voluntary sector. This is in order that projects which provide support for people on bail form part of local partnership arrangements and in order that spending decisions can be taken at local level in the light of local needs and priorities.
Many of these schemes will be run in conjunction with local authorities, where that is the most effective arrangement. In fact, the number of voluntary sector projects which have been funded by the Home Office nearly doubled during 1993. Last year the Home Office made more than 30 grants to schemes offering bail support, some of which include juveniles. We certainly want to encourage the probation services to look carefully at the possible benefits of well established projects to support the bail system and give the courts greater confidence in giving bail in appropriate cases.
In fact, we have gone further. The Home Office has recently provided the National Association for the Care and Resettlement of Offenders with a grant to fund a national unit to develop bail support schemes. That has the task of undertaking a three-year programme of work designed to help develop bail support where it is likely to be most effective.
The level of bail support which is found to be necessary in each area is bound to depend upon the local circumstances. It is right that local authorities and probation services should have the flexibility to make these arrangements in accordance with local needs. I believe that a statutory provision, such as the one proposed in the amendment, would place a constriction on the arrangements. It would be much better to allow them to remain flexible.
Lord Mclntosh of Haringey
I accept that there are ways of providing bail support other than the one provided in this new clause. But surely the issue which arises from subsection (2) of the new clause is one of resources for local authorities. When he mentioned the additional ways of providing bail support, the Minister did not say that local authorities should not be providing bail support. Does he agree that they should be encouraged, in the terms of the amendment, by having the resources made available to them by the Secretary of State with the consent of the Treasury?
I tried to make the point that instead of the Home Office saying, as it were, what should be 152 made available and where, that money has been devolved down to local probation services, so that they should use that money which previously would have been administered centrally. It should be administered locally.
§ Lord Harris of Greenwich
The noble Earl said—I am sure he is right—that there are 78 local authorities (I believe that is the figure he gave) which are providing such services. It follows therefore that a very significant number do not have arrangements of that character in hand. It seems fairly clear that the Government, for understandable reasons, are reluctant to impose a new statutory duty on all local authorities because of the public expenditure implications. There can be no other explanation for resistance to an amendment of this kind.
The noble Earl will recognise the problem. If people are put in a custodial environment, the public expenditure implications are even greater than in having a proper bail support system.
The noble Lord has made a mathematical calculation. If 78 local authorities provide bail support schemes and there are more than that number of local authorities, then some of them do not provide them.
§ Baroness David
Perhaps I could just clarify that point. The survey covered only 103 social services departments and 30 had no bail support. It did not cover absolutely every authority in the country.
§ 4.15 p.m.
I think that possibly the noble Baroness may be confusing two figures. It is my fault. According to the recently published survey, as many as 78 local authorities have made bail support available in their areas. That means that 30 do not do so. Later I went on to say that the Home Office made more than 30 grants to schemes offering bail support. The two figures, each of 30, may have caused the confusion. The Home Office has made 30 grants to schemes offering bail support. There are 78 local authorities which provide that and 30 apparently do not do so.
§ Baroness David
Can the noble Earl say whether the 30 which were given money for bail support were the 30 which gave no services at all before?
I should have to find out for the noble Baroness. I was not aware that she would want to know precisely which local authorities had the support and which had not. The point made by the noble Lord, Lord Harris, is a reasonable one. The local authorities should be encouraged. But part of the whole effect of government is the devolution of responsibilities through local government. Inevitably that means that some local authorities will decide to do what other local authorities will not do. It is a matter for the local authorities to decide on what they will do.
We certainly provide encouragement and assistance where necessary. It is strongly in the financial interests of local authorities to provide bail support for juveniles, given the very high cost of open and secure accommodation to which juveniles might otherwise go.
153 In the light of that, I hope that most local authorities —in fact more local authorities—will take up these bail support schemes and so reduce the figure to which the noble Lord, Lord Harris, drew attention.
§ Lord Hylton
Will the noble Earl follow up his words by having a circular issued pointing out to local authorities the importance and advantages of bail support schemes?
§ Lord Elton
Perhaps I may just add one point. This morning I was briefly at the National Probation Council's annual general meeting. There I picked up the concern about the under-use of bail hostel accommoda-tion. The view was that there was a very urgent need for it to be taken up, otherwise the funding for it would wither on the bough. In fact, that appears to be happening already.
It is an area in which a Home Office circular could be extremely helpful. Indeed, the idea of the noble Baroness, Lady David—I understand that it was her idea —to restrict the money for this purpose to that use has its precedent in my noble friend's department in the ring-fencing of 5 per cent. of the probation service money for use in the voluntary sector. I hope that my noble friend will look closely at this area, in which there is much to be done and a great deal of harm to be avoided.
I quite understand the desire of the noble Lord, Lord Hylton, to have a circular, which is supported by my noble friend Lord Elton. Obviously, there is a limit to the number of circulars that one can chase around to local authorities. I shall certainly consider the points that have been made. I cannot guarantee that a circular would be the right course to take, but it is a point worthy of consideration.
§ Baroness Faithfull
I should like to make two points. First, a number of children's voluntary organisations, such as Barnardo's, run community-based supervised projects for such children. Secondly, one of their great successes is the work that they do with parents. The parents are involved in coming to those projects and working with the staff and children together. They are essentially cost effective and often very much better for the children than being sent away.
§ Lord Harris of Greenwich
Perhaps I may add a further word. The noble Earl was kind enough to say that he would reflect on what has been said this afternoon. We all welcome that. He referred to devolving funds to the probation services to support bail schemes. Will he accept that those are mainly schemes directed at adult offenders? In fact, does not the social services department deal with the young people whose future we are now discussing? Certainly we all very much welcome the grant to NACRO to establish these new national units. But their purpose is entirely advisory.
I repeat that I welcome very much what the Minister said this afternoon. I hope that, when he writes to the noble Lord, Lord Hylton, he will also add some of our names to the letter.
This has been a useful debate. It has drawn out a lot of strands of an important area, some of which are matters of detail which we shall need to consider. Many of the schemes are jointly managed by the probation and social services. The noble Lord, Lord Hylton, asked whether or not we would issue guidance. I said that these are matters that we shall certainly consider. In fact they are being considered at the moment and it is expected that the Home Office will publish a circular on bail at some time in the near future. The fact that we have had this discussion this afternoon will be extremely helpful.
§ Baroness David
I thank all Members of the Committee who have taken part in the debate. There is no doubt that bail support schemes for juveniles are welcomed on all sides of the Chamber. It is really a question of whether or not there is enough money to pay for them. I hope therefore that the noble Earl will use his influence to make sure that there is enough money.
I shall not divide the Committee now about the question of there being a statutory duty. But I should like to think about the matter and decide whether or not it is important to come back at the next stage. I thank the Minister for what he said in support of the amendment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 23 shall stand part of the Bill.
§ Lord Elton
I gave notice of my intention to resist the proposal that this clause shall stand part of the Bill. The field which I intended to sow has been usefully, albeit accidently, ploughed by the noble Baroness, Lady David, in advance.
The purpose of Clause 23 is to mirror the level of security of detention provided in Clause 1 for children of certain categories, for children in the same categories who have been arrested and charged but not taken to court. The Committee will readily see that the clause goes beyond that purpose and I shall return to that. As it is in itself an extension of a system set up in 1984, which your Lordships amended in 1991, we should first look to see how the system into which it is intended to draw children of 12 and 13 is now working and to what extent your Lordships' intentions are being met.
When we made our amendments in 1991 my noble friend said that no one wished to see children locked up in police cells. I am sure that we all subscribe to that view today, as we did then. We understood that very few children would in fact be so. Strict guidelines were undertaken and accurately reflected in later Home Office guidance. We are again asked to have the same understanding by the responsible Minister in another place. In discussing the matter he said,this is an exceptional power and the local authority social services department will be fully involved in decisions. The vast majority of juveniles aged 12 to 16 who are refusal bail will continue to be looked after by the local authority in the short period after being charged and before their first court appearance".—[Official Report, Commons, Standing Committee B; 1/3/94; col. 1097.]Let us look at the background to our first understanding before assessing that invitation to renew it. I can help the 155 Committee to do so thanks to the information provided by the Standing Committee for Youth Justice, which is much exercised about the matter.
In the majority of police force areas constabularies have taken on board the spirit of Parliament's intentions. So let us start with an example from one of those. The problem used to be particularly acute in the relatively small north-western metropolitan borough of Bolton. I am informed that between June and December 1991, 183 juveniles were detained in police cells with only two being moved to local authority accommodation. For the first nine months of 1992 the figures were 211 and six respectively. Our amendment to Section 38(6) then came into force and over the next three months seven juveniles were detained and 15 moved to local authority accommodation. In 1993 as a whole 56 juveniles remained in the police station, not at the instance of the custody officer, but because the social services department considered that they would abscond or because they could not obtain secure accommodation.
That is the security that Members of the Committee are looking for from Clause 23. In that year 143 juveniles were moved to local authority accommoda-tion. Of those remaining in police custody, 11 were aged 14 and would be caught by the clause, and of those moved out of the police station, 19 were 13-year olds and 26 14-year olds, who would also be caught by the clause.
That practice of social workers, in consultation with the police, of assessing the risk of children not appearing in court, reflects excellent practice mirrored in a number of other police force areas. Those facts provide a good example of police and social workers working together with the social work departments carrying out the functions allocated to them under the arrangements we made in 1991 and which are to be extended by the clause. The figures illustrate the scale of the operation where is it working well. But the scale can be much greater in spite of the changes we then made.
For instance, in 1993 I understand that 1,106 juveniles were produced before Nottingham Guildhall court with fewer than 50 coming from local authority accommodation. Of that 1,106, 88 were 13 and under and 146 were 14 years old. The majority of those children would have been kept in police custody overnight or over a weekend. That was a reduction in the 1992 figure when 324 juveniles aged 14 or under were produced before the court.
In another East Midlands authority—Humberside— where numbers are more reasonable because of effective inter-agency agreements and policy on the section, there is nevertheless difficulty in accommodating detained juveniles. In 1993, 363 aged 11 to 16 were brought before the courts, either having spent the night in police custody or having been moved to local authority accommodation. Of that figure, only 50 juveniles fell into the latter category; that is, from local authority accommodation. Of those 50, 23 were aged 11 to 14. A further 36 children of that age were left in the police stations. In total, 313 children remained in police cells either overnight or over a weekend in that one borough.
156 Clause 23 would extend the operation of Section 38(6) of the 1984 Act downwards in age from 15 to 12. Even in the well conducted area I have just quoted the volume will be increased and so inevitably will the numbers of children kept inappropriately in police cells overnight and over the weekend. It is at that point that I ask Members of the Committee to recall that the declared intention of Clause 23 is merely that it shall extend the level of security established in Clause 1 for the customers defined in Clause 1, after sentence, to the same child customers after they have been arrested and charged so that they can be reliably delivered up for trial —something that we all want to be achieved.
The point to note in Clause 1, is that its customers are clearly and carefully defined. The definition is in two parts. The first relates to their age,not less than 12 but under 15".That is reflected in Clause 23 and I have no quarrel with it. The second definition relates to their history and is to be found in Clause 1(5). It defines a child who has been convicted of three or more imprisonable offences and has either been found by a court to be in breach of a Children and Young Persons Act supervision order or has been convicted of an imprisonable offence while subject to such an order.
The whole of the second restricted definition is missing from Clause 23; nor does the clause contain anything to provide an even vaguely similar restriction on its effect. Clause 23 therefore seems to me to be designed to catch—perhaps unintentionally—a large number of customers who will never qualify even to be considered for sentencing under Clause 1. It will therefore greatly overload a system that I have shown to be already greatly overloaded and much unjust and inhuman treatment of children will result.
I hope that my noble friend can bring the clause back to your Lordships at Report stage, suitably restricted to match the restrictions already in Clause 1. If he cannot, I do not think it ought to remain part of the Bill.
§ 4.30 p.m.
§ Lord Harris of Greenwich
I have much sympathy with what the noble Lord, Lord Elton, says. This is a real problem. It affects both the social services and the police. I do not believe that there is any chief constable in the country who wants to keep 12 year-olds and 13 year-olds in police cells. It would be an absurdity for them to have any such ambition. The problem is that there is a woeful lack of local authority secure accommodation. It is a real difficulty for the police.
Perhaps I may give an example. A couple of years ago I visited a quite substantial county police force with a senior police officer from outside that county. I was talking to a detective chief superintendent. The problem he identified related to non-secure local authority homes in his force area where children were regularly decamping and committing a substantial number of criminal offences. They were eventually captured by the police. What then was the police force supposed to do? Did it simply return them to the children's home from which they had run away, knowing that if they did so the 157 children would almost certainly leave and commit another dozen or so criminal offences before they were yet again caught?
The problem was that in that force area there was a woeful lack of local authority secure accommodation where the children could be put. No doubt, in many cases, they were kept in police cells. The police did not want to keep them there; they regarded it as profoundly unsatisfactory. That is why so many of us have been pressing the Government over the past few years, and before that, to have a well-planned programme for increasing the amount of local authority secure accommodation. The fact is that if we do not have this accommodation the children will in some cases go to police cells. I find that most unsatisfactory. As I said yesterday, I welcome the fact that Mrs. Bottomley now has a programme to increase the amount of local authority secure accommodation. I hope that that programme is going to be pressed ahead with considerable energy because if it is not the kind of situation outlined by the noble Lord, Lord Elton, will be repeated in many parts of the country.
§ Baroness Faithfull
I support my noble friend Lord Elton and the noble Lord, Lord Harris of Greenwich. The Department of Health has agreed to 170 more places in the country. There are two problems here. One is resolved: there is to be a grant made for the setting up of the centres. But there is no grant made for running them. With local authorities in difficulties over finance and resources at the moment, I wonder whether my noble friend the Minister will consider that point.
§ Baroness Mallalieu
I too support the noble Lord, Lord Elton, and what the noble Lord, Lord Harris of Greenwich, said about the provision of more local authority secure places. From all sides of the Committee and from those who are concerned in this matter, there is undoubtedly growing disquiet about the number of children being kept, even for relatively short periods, in police custody. If these provisions remain in the Bill there will no doubt be an increase in the number of children in that position and, sadly, their age will be lowered to 12.
Yesterday the noble Baroness, Lady Faithfull, spoke of her own experience in spending a night in a police cell. Even those of us who have not taken the drastic step that she has know that that is unsatisfactory accommodation for an adult, let alone a child. There are no exercise facilities and worse still, in the case of what is often a difficult and disturbed youngster, there is very unlikely to be anyone who is trained to deal with the specific problems of a child. It is a frightening experience for an adult but a terrifying and possibly a scarring one for a child.
If the provision of more local authority secure places is considered necessary to ensure that no children have to go, even temporarily, into police custody, that surely is the direction in which we should be going. I too am grateful that provision has been made at any rate to provide 170 more places. But it is clear that provision must be made to ensure that those places can continue to be run. Greater use of police custody is clearly inappropriate to deal with children in this position. I 158 hope that the noble Earl will address the questions which have been put to him by Members of the Committee.
§ Lord Renton
Despite what I felt obliged to say yesterday about police custody sometimes having to be used because there is no other accommodation available, I agree with the noble Baroness, Lady Mallalieu, and with my noble friends, that we should try to avoid that situation as far as possible.
I invite the attention of the Committee to Clause 23 as it stands. The Government's purposes there is to be achieved by an amendment to the Police and Criminal Evidence Act 1984. We have legislation by reference of a fairly simple kind. But when we look at the explanatory memorandum which purports to describe the effects of Clause 23, Members of the Committee will see that it gives police,a power to detain juveniles aged 12–14 in police cells prior to their appearance in court".I stress those words of limitation,prior to their appearance in court".Then conditions are laid down, which are not specifically referred to in the clause itself. Those conditions are,when no local authority secure accommodation is available and there is risk to the public of serious harm from the juveniles".I hope that I am not asking too much of my noble friend Lord Ferrers in dealing with what he may consider a rather technical point. However, can he assure the Committee that Clause 23, by merely amending the Police and Criminal Evidence Act 1984, achieves the Government's purpose as described in the explanatory memorandum and in particular whether it limits it to the position,prior to their appearance in courtand also to,when no local authority secure accommodation is available"?Is it also limited to cases where,there is risk to the public of serious harm from the juveniles"?One does not gather from a simple amendment to the 1984 Act that those conditions are covered by the clause as drafted.
§ Lord Elton
My noble friend puts his finger on an important point. While other noble friends are gathering their wits I should point out that the restrictive phrases in the explanatory memorandum are extracted from the Act which is amended by reference—that Is to say, the 1984 legislation. I am struggling to pin them down as I speak. I refer to the case of an arrested juvenile who has attained the age of 15 years, for whom no secure accommodation is available and when keeping him in other local authority accommodation would not be adequate to protect the public from serious harm. That is not the restriction I am seeking because it is already in place.
All I seek is a balance between Clause 1and Clause 23. Clause 1 concerns one handful of people and Clause 23 concerns three handfuls of people of whom only one is going to be of any use to the system. They should not be exposed to this provision.
§ Lord Renton
I am grateful to my noble friend Lord Elton. I am sure that my noble friend Lord Ferrers will be even more grateful because it will save him explaining the technicalities.
§ Lord Campbell of Alloway
I wish to make a brief intervention on this matter. I cannot see any reason why this clause should not stand part of the Bill. I accept that there has to be a balance between Clause 1 and Clause 23, but Clause 1 stands part. Therefore, after the commission of an alleged arrestable offence, surely an accused of 12 years of age may be arrested and charged. Looking at the matter in practical terms, if he is not released on police bail and the offence is of a very serious nature, the accused must be detained and brought before the magistrates when the question of release on bail will be judicially considered on the morrow. We are not concerned about conviction because there is no way in which prison accommodation or police cells may be used on conviction. My noble friend the Minister gave that clear undertaking yesterday at col. 62 of Hansard, so we are not concerned with that. In the circumstances, I cannot see any reason why Clause 23 should not stand part of the Bill.
§ Lord Elton
Without knowing for which part of the debate my noble friend was absent, it is difficult to know how to answer his point. The point very narrowly is that the expressed purpose of Clause 23 is to catch the customers who may qualify under Clause 1 for sentence. That means the people whose description is clearly set out in Clause 1 (1) and Clause 1 (5). That definitive restriction is absent from Clause 23 and makes its effect very much wider. That is what I am seeking to narrow.
I think that my noble friend Lord Campbell of Alloway has made a very sensible intervention in suggesting that he can see no reason why the clause should not stand part of the Bill. I agree with him. I wish that my noble friend, who had the privilege of serving in the Home Office once upon a time, would do the same when Home Office Bills come up and would not always try to exclude various of their clauses. That would make my life a great deal easier.
I know that my noble friend is very concerned about children. He is right to express that concern. There is no question but that we all share that concern. However, the simple fact is that crime is being committed more and more by younger and younger people. That is a very sad fact. It is also a fact that we have to do something about it. The other fact is that the public have to be protected from those people. Therefore, the route that we have chosen is that there should be secure training centres and more local authority secure accommodation. That is the point about which the noble Lord, Lord Harris of Greenwich, was concerned. One is always in difficulty when trying to balance the two halves of this equation which run contrary to each other. One is that it is wrong to lock up children, and the other is that it is intolerable 160 to have those children running around creating mayhem for the public. One cannot meet those two points without causing some anxiety somewhere.
All of us dislike the idea of children spending nights in police cells. Equally, all of us dislike the idea of children creating chaos in their communities. The fact is that children will be kept in police cells on only the very rarest of occasions. My noble friend Lady Faithfull referred to the fact that more local authority accommodation was being made available and that although there was a grant for the setting up of such accommodation there was none for the running of it. However, my noble friend will see from Clause 21 that there is a power for central government to reimburse the revenue costs of local authorities which are looking after juveniles who are remanded by the courts to secure accommodation. That should be a help.
My noble friend Lord Elton was concerned because he said that there is an imbalance between Clause 1 and Clause 23. He said that he thought that Clause 23 was designed to catch a large number of customers not covered by Clause 1. He suggested that the criteria for detention in police stations should be identical to those for the secure training orders. That is not correct because the police should not have to consider all of the factors which a court has to consider when sentencing. I do not think that they can be expected to do that. The police want to ensure that the juvenile appears in court and that the public are protected. To some extent, the need to protect the public from harm is a more stringent criterion than that in Clause 1.
My noble friend Lord Renton posed some questions about Clause 23 and asked about the effect of achieving the Government's purpose as described in the explanatory memorandum. He asked whether Clause 23 did that. I think that it does. It limits the situation in the way described by my noble friend. The amendment to the 1984 Act, which was made by the Criminal Justice Act 1991, should be read together with the amendment that is made by Clause 23.
My noble friend said that he was concerned about the Police and Criminal Evidence Act 1984 under which, when a juvenile—in other words, a person who is under 17—is charged and when bail is withheld by the police he or she must be transferred to local authority accommodation until their first court appearance unless such a course is impracticable. This properly reflects the fact that young people need to be looked after in a way which is appropriate to their age, and police cells are not generally the most suitable environment in which to keep children for long periods of time.
Your Lordships will remember that the Criminal Justice Act 1991 introduced exceptions so that the police can hold onto juveniles when it is impracticable to transfer them. In the case of 15 and 16 year-olds, they can also be held onto in police accommodation when there is no secure local authority accommodation available and when the custody officer considers that any other form of accommodation would not be adequate to protect the public from serious harm. Those are fairly stringent criteria.
Clause 23 will extend the scope of this exception so that 12 to 14 year-olds, in addition to 15 and 16 161 year-olds, may be held in police cells on those rare occasions, following charge and before their first court appearance, when bail is refused and where there is a risk to the public of serious harm from the child but where no local authority secure accommodation is available.
To some extent this will complement two other measures in the Bill—the secure training order for persistent young offenders aged 12 to 14 and the extension of the courts' powers to order secure remands for 12 to 14 year-olds—and it will give police the necessary powers to carry out their responsibility to protect the public in the period before a juvenile appears in court.
I must emphasise that that is an exceptional power and that the local authority social services department will be fully involved in any decision of that nature. The vast majority of juveniles, who are aged 12 to 16 and who are refused bail, will continue to be looked after by the local authority in the short period following charge and before their first court appearance. Therefore, I hope that I have been able to persuade my noble friend Lord Elton that Clause 23 should remain in the Bill.
§ Lord Elton
My noble friend's closing remarks underline the principal message of the debate, which is the urgent need for more secure places so that his undertaking can be delivered. We are standing at the divide between two departments, in both of which I have had the privilege of serving: the Department of Health and the Home Office. The irony of the situation is that it is the Department of Health which has to deliver the machinery which, in turn, will deliver my noble friend's undertaking.
I agree that it is a privilege to serve in the Home Office and it is the greatest privilege to persuade the Committee not only that the generality of what is proposed is right—that children sometimes have to be locked up—but also of the particularity; which is that the right children are being locked up.
My noble friend has not answered my case as to the definition of those to be caught by Clause 23 differing from those in Clause 1 except to point out that the constable, the custody officer, should not have the same duty as the court to discover the antecedent history of the offence. That is why I was careful in my opening remarks to say that if the clause could not be brought back with the same restrictions, or something similar, it should not be in the Bill.
My noble friend frequently assures us that placing children in police cells will be a rare occurrence. The noble Lord, Lord Harris, pointed out that no policeman in his senses wants to have his police station swarming with rebellious 12 year-olds. I can say only that subjectively I entirely agree with that, but I have in my papers two cases—I think the noble Baroness quoted one of them earlier—from which it is clear that a particular custody officer retained juveniles of, I think, the age of 14 in each case, in custody overnight when the local authority was willing and had suitable accommodation available. I hope that I can pursue that issue with my noble friend outside the purlieus of this debate, because one thing that should emerge from this 162 is not just pressure to increase the amount of local authority secure accommodation available but to have some effective monitoring of what is going on.
I am disturbed by the number of cases, other than those, which have been brought to my attention, for it seems to me that children have been treated wrongfully. My noble friend said that crime is being committed more and more by younger and younger people. I accept that. I ask merely that it is only those younger people who are committing the "more and more" crime who are detained overnight in police cells under the clause. However, I hope that between now and Report, he will consider whether there is anything in the restrictive definition of this, or any further arguments against having such a restrictive definition in the clause. I see my noble friend teetering on the edge of the seat. I shall give him the opportunity to respond to that point before I withdraw my opposition.
I have been teetering on the edge of my seat for the past few minutes, because I cannot let my noble friend get away with saying that I have not answered his problem about why Clause 23 is different from Clause 1. My noble friend is normally understanding and generous about these matters, but he was not at all generous over that this afternoon. Let me try to explain the problem, if he has not understood it.
A secure training centre is one which will be used for special people who will have been convicted of three imprisonable offences and will have failed to abide by a community service order. We are not necessarily talking about those people in Clause 23; we are talking about people who come into a police station, and whose: behaviour the constable concerned considers to be such as to put the public in danger if they are not put into secure accommodation.
If there is secure accommodation available locally —they will not be secure training units because they will be for those convicted only—then such people will go to that. It is only if there is no local secure accommodation available that they will be retained in a police station. My noble friend does not seem to understand that those individuals who will be retained will not necessarily have been convicted of three imprisonable offences; they will not have been given a community supervision order; they might just be terrible menaces who, if allowed out, will go and do harm to the public. That is why Clause 23 is different from Clause 1.
§ Baroness David
When I spoke prematurely, and quoted those two cases, the point was that both the boys concerned were not given custodial sentences afterwards.
I dare say. I shall have to read what the noble Baroness said because it was some time ago now, and I was so confused by the speech that she was making, because it did not co-relate to the one that I was going to make, that I find it difficult to remember. It would not surprise me though. She was saying that the children who were kept in were not necessarily put into secure accommodation afterwards. If that is what she said, it is of course a matter for the courts to judge. But 163 the immediate problem arises when they come into police custody. The policeman has to decide, "Are we going to let this person out who is likely to cause more damage, even though he has not yet gone to court, or should we keep him in custody?" Those two things are different: police responsibility towards the public and that which the courts decide.
§ Lord Elton
I am obliged to my noble friend. I like it when he gets warmed up to his theme like that, because we get better value for our money than we normally do, and that is considerable.
I may have been led astray slightly by reading the remarks of his honourable friend in another place who said that the new clause would embody two measures in the Bill: the secure training order for persistent young offenders aged 12 to 14, and the extension of the court's power to order secure remands for 12 to 14 year-olds.
We have had long enough on this issue. We have displayed our concerns, and how they might be amended. I shall say no more now. I hope to come back at the next stage when the temperature has fallen a little.
Clause 23 agreed to.
Baroness Mallalieu moved Amendment No. 19:
After Clause 23, insert the following new clause:
("Mandatory pre-sentence reports for offenders under 21.
•In Section 1 of the Criminal Justice Act 1991, after
subsection (2) there shall be inserted the following subsection—
"(2A) In the case of an offender aged under 21, the Court
shall not form any such opinion as is mentioned in
subsection (2) above, unless it has obtained and considered
a pre-sentence report".").
§ The noble Baroness said: I shall speak also to Amendments Nos. 171, 171A and 17IB. All the amendments relate to pre-sentence reports and are an attempt to deal with the complete turnaround in government policy currently contained in the Bill. The Committee will remember that 18 months ago (October 1992) the provisions contained in the Criminal Justice Act 1991 came into force. Thereafter, the court has had to consider pre-sentence reports before passing a custodial sentence in every case, except where the offence is one that is triable on indictment only; in other words, of the utmost seriousness—murder, rape or robbery. The court has also to consider a report even in those cases unless it considers a report to be unnecessary.
§ Similarly, the court has had to consider a pre-sentence report before passing certain community sentences such as community service orders and some probation orders. Since that date, those provisions have been working well. Major investment was undertaken in training not merely probation officers to produce the reports, but magistrates and judges in relation to the purpose and content and the use to which those reports were to be put.
§ A great deal of work has gone into developing national standards in relation to reports; to monitoring the way in which and the speed at which they were provided; and to ensuring their quality. The new working procedures have undoubtedly improved the efficiency of the production of such reports, and since 1992 magistrates and judges have, in the vast majority 164 of cases that have come before them for sentence, had the advantage of information about offenders' personal and social backgrounds and what community penalties are relevant and available in their area.
§ The new arrangements have not, as yet, had time to become established, but in that respect the outcome of the 1991 Act appears to be excellent. That was perhaps too good to be true, and in the Bill the Government seem to have been unable to resist interfering with what they put in place such a short time ago.
§ Under the Bill, courts will no longer have to obtain a pre-sentence report before passing on an offender a custodial or community sentence if they consider that such a report is unnecessary. The incentives for those proposed changes are no doubt in part financial and in part prompted by judges who have, on occasions, said that a report is unnecessary in a case where, for example, they believe the need for a custodial sentence is self-evident.
§ I readily accept that there may be some cases in which, at the end of the day, the report makes no difference to the sentence, but it is difficult, if not impossible, to say that beforehand. The benefits of pre-sentence reports are inestimable. Perhaps I can begin to give just some indication of them as someone who appears not merely as a barrister, both prosecuting and defending, but who for some years, until relatively recently, has sat as a recorder, sentencing and making use of them. First, the Association of Chief Officers of Probation says that in a significant number of cases judges have changed their minds on reading a pre-sentence report. In relation to custodial sentences, reports may affect the length of a sentence. They may also affect the way in which an offender is dealt with within the prison system, if a custodial sentence is enforced and also his treatment after his release on licence or otherwise.
§ A report gives an independent investigation of the family background of a man or woman. That may involve interviews with the family, visits to the home, interviews with employers and so forth. It is an in-depth study which no lawyer is likely to be able to make; an independent assessment from material which no lawyer is ever likely to see.
§ A report of this kind may also indicate a need for psychiatric examination or a psychiatric history, which is unknown to the lawyer representing the man and therefore unknown to the court from what the lawyer has told the judge. Often in the brief period of time during which the lawyer sees his client such a background may not have been mentioned or may not have been apparent.
§ It is right to say that often it is better and easier to assess the degree of genuine remorse which an offender may have and, indeed, the likelihood of his reoffending when a probation officer has time to interview him over a lengthy period and away from the courtroom atmosphere. The probation officer preparing the report is also likely to have access to earlier reports if they exist and to have indications of an offender's response to previous sentences, which may well be unknown to legal advisers.165
§ When non-custodial sentences are being contem-plated, while a local judge may know very well what is available in his area in relation to specific programmes for offenders today recorders and assistant recorders often sit in a great many different areas and will not know what is available. Matching an offender to a specific programme which is available in his area and where a place is likely to be found for him is a job for an expert and often that job is done by a pre-sentence report. For all those reasons, and no doubt many more, those reports are seldom, if ever, a complete waste of time.
§ There may well be some hidden benefits of the 1991 legislation. Home Office research studies carried out in 1988,1989 and 1992 show a disproportionate number of black offenders ending up in custody. No doubt there are many reasons for that but it is significant that the 1988 research showed that 22 per cent. of white defendants had no social inquiry report prepared in their cases whereas 37 per cent. of non-whites did.
§ Under the present law as enacted by this Government in the 1991 Act, pre-sentence reports are prepared on the vast majority of offenders in all racial groups. The proposed changes in the Bill may well reverse what was a valuable reform. Amendment No. 19 introduces a new clause which seeks to retain the present position for offenders who are under 21. The other amendments grouped with it relate to changes to Schedule 9, which in effect seeks to achieve the same object.
§ The government proposals in the Bill contain a supposed safeguard in relation to offenders under 18; namely, that the court must consider a pre-sentence report on an offender of this age unless it has a previous pre-sentence report on that offender. That simply is not good enough because a previous report will not include an assessment of what community sentences are now available and which will be suitable to the offender in his present circumstances. Nor is an old report able to make any recommendation matching a sufficient punishment to the seriousness of the current offence for which the offender must be dealt with by the court. Unless there is an up-to-date court report which contains up-to-date information, there is a real danger that a court may find itself imposing sentences on young offenders which may be harsher or more lenient than is justified if all the circumstances were known; or which is too short to protect the public if all the circumstances of the offender's background and his response to other punishments were known; or which is inappropriate simply because the sentencer was unaware of a sentencing option which was open to him in that area.
§ Thankfully, most young offenders grow out of offending. These offences tend to occur during a period of rapid change and of a variety of problems. They may include difficulties at home, difficulties with drugs, difficulties with work and difficulties with homeless-ness. But often those situations change rapidly at this age. At the very least, in these cases the courts must continue to have help from pre-sentence reports. I beg to move.
§ Lord Elton
Amendment No. 171, which stands in my name, is grouped with this amendment and perhaps, 166 therefore, I might briefly address this problem. I shall be most interested to hear my noble friend's reply. I am grateful to him for the letter that he sent to me earlier today giving the reasons for introducing this change.
Perhaps I may first remind the Committee that the effect of Amendment No. 171 will be to strike out paragraph 34 of Schedule 9. That is the paragraph which does the work that the noble Baroness's amendment seeks to address. I am not sure that without my amendment her amendment will have the desired effect because the schedule will have the effect of setting aside part of her requirements. However, that is an academic question and we are looking at the generality of the issue.
The effective parts of paragraph 34, which appears on page 158 of the Bill, are contained in two sub-paragraphs. Sub-paragraph (2) deals with offenders under the age of 18. It sets aside the requirement to obtain a pre-sentence report if there exists a previous pre-sentence report. My noble friend pointed out in his letter that the court will have to look at the previous pre-sentence report before deciding whether a further report is necessary.
Apart from looking at the date, it is difficult to set; how an old report will reveal the changes that have taken place since it was written. I do not believe that anyone can come to a judgment on that without the advice of someone responsible for and knowledgeable of the juvenile in question. Therefore, such a judgment should be made by the kind of person who would be writing the new report, if that were required. Such a person would know whether the parents who had broken up had come together again, whether the history of offending had ceased six months ago, whether in the interim the child had been adopted or whatever, and whether the pattern of behaviour had entirely changed. That will not be apparent to the court on reading the old report but only on hearing from someone who knows what has happened since. I hope that my noble friend will be able to reassure me about that.
The second effective part of paragraph 34 is sub-paragraph (3) and it falls into two parts. As the noble Baroness said, as regards the 18 year-old it waives the necessity to obtain a pre-sentence report. My area of interest is with the younger customer but 1 see that that makes one somewhat anxious. As regards the younger person, the same requirement exists: that the necessity for a new pre-sentence report should be considered in the light of the old one. I am bringing to my noble friend a simple issue and I hope that he will look at it sympathetically and will reassure me.
§ Baroness Faithfull
As one who has had to present pre-sentence reports in court, I rise to support the amendment. It is important that there should be a pre-sentence report and I have spoken to the Principal Probation Officer of Inner London who feels strongly about the matter.
Perhaps I may cite various examples. A man may have been ill, in a mental hospital, have had an accident, or have become homeless. It is important that whoever is passing the sentence has that information.
167 I agree with my noble friend Lord Elton. Circumstances may have changed greatly since the previous pre-sentence report. Therefore, I strongly support the amendment.
The Earl of Balfour
I raise a rather difficult matter. To delete paragraph 34 of Schedule 9 would leave out a chunk of Scottish law which I believe could be improved. The difficulty is that paragraph 34 makes an amendment to the Criminal Justice Act 1991. If the Committee desires to make amendments, I suggest respectfully that they should be added to paragraph 34 of Schedule 4. That schedule is introduced by Clause 40 which applies to England and Wales; it would not affect Scotland.
I often find it difficult to see exactly which parts of the Bill affect Scotland and which affect England and Wales. Basically, most of the Bill applies to England and Wales, but according to Clause 152(9), Clause 148 applies to the United Kingdom.
§ Lord Elton
Perhaps I may help my noble friend. I am quite happy to be wrong because I am addressing a general principle. If I am wrong, let us tackle it a different way. However, I believe I am right in saying that Clause 3 of the Criminal Justice Bill bites on either England and Wales or the United Kingdom; but I believe that it is the former. In that case, whatever the introductory clause, the effect will be to change Section 3 of the Criminal Justice Act 1991. The effects will flow from that. It is not my intention to mess around with Scottish law. I avoid doing that like the plague, and I sometimes wish that Scottish Peers would do the same.
§ Viscount Tenby
I support the noble Baroness, Lady Mallalieu. I shall be brief because she has said it all extremely adequately and far more effectively than I could hope to do. I believe it to be an unfortunate precedent to remove the mandatory requirement for a pre-sentence report, even if it is deemed, perhaps because of previous offences and, therefore, the presence of some kind of past report, that no new report is necessary for the new offence.
As a magistrate, I must say that time after time the one absolutely indispensable tool in determining a certain course of action has been a pre-sentence report. I cannot emphasise that too strongly. No one knows better than the Bench the rapidity with which a defendant's circumstances can change.
Most courts will not proceed on motoring matters without an up-to-date print-out from Swansea if the defendant does not have his licence available. How much more vital is it that one should be up to date in matters relating to the disposal of criminal cases and the possible removal of freedom for a young offender.
§ Baroness David
The research commissioned by the Home Office, which resulted in the book Persistent Young Offenders, issued in January, also emphasised the necessity of an absolutely up-to-date report because, as has been said, the circumstances of these young people do change incredibly quickly.
§ 5.15 p.m.
The requirement to obtain and consider pre-sentence reports before passing custodial or certain community sentences was placed, as the noble Baroness, Lady Mallalieu, quite rightly said, upon the courts by the Criminal Justice Act 1991. But that was subject to a discretion not to have a report where the offence was triable only on indictment.
The requirement to obtain reports has produced a number of very considerable benefits. However, having heard the views of judges and magistrates and having seen the results of a review of the way in which present arrangements work in practice—a review undertaken by Her Majesty's Inspectorate of Probation—we concluded that the requirements should not impose unnecessary fetters on the courts and unnecessary costs for the criminal justice system as a whole. Therefore, in another place we amended the Bill to extend to all cases—not just cases triable only on indictment—the courts' discretion to dispense with a report where they consider that a proper sentencing judgment can be reached without one. I am sure that the courts will exercise their extended discretion with great care, bearing in mind the value of a good pre-sentence report in bringing out information about the offender and the offence.
There is no question of abolishing pre-sentence reports or anything like that. The Bill includes a special safeguard for juvenile offenders. The court must have proper regard to their welfare requirements. In their case, the discretion is subject to there being in existence a previous report on the offender and subject to the court councerned having regard to the report or, where there is more than one report, to the last report.
My noble friend Lord Elton was concerned about how a court knows whether a person has stopped offending. There is no point in obtaining a pre-sentence report if the court already has one and if it knows about the person concerned. If there is any doubt, the court will ask for a pre-sentence report. The court must consider whether to dispense with obtaining a new report. If the information in an existing report is not up to date, then the court will wish to obtain a new report in order that it has available the most up-to-date information.
My right honourable friend the Home Secretary, when he announced the amendment, said in reply to a Parliamentary Question that the courts will obviously wish to exercise the discretion not to have a pre-sentence report sparingly and with care. The provision retains the benefits of the 1991 Act while avoiding unnecessary delays and costs in cases where a pre-sentence report will add nothing of value to the sentencing decision.
In their different ways, the amendments would cause us to miss out on the benefits of giving courts more discretion. Amendment No. 171 would leave the law as it is now with the result that the court in some cases may have to call for a report even when, for example, it is clear that a substantial custodial sentence is, in all the circumstances, inevitable and where nothing in the report would bear on that outcome. Amendments Nos. 19, 171A and 17IB would create complicated and 169 unwelcome anomalies by treating the age of 21 as the cut-off point for additional safeguards instead of the age of 18. The standard distinction is between offenders who are under the age of 18 and those who are over the age of 18 who are, therefore, considered to be adults. It is only when offenders are under the age of 18 that the court must consider their welfare needs.
I believe that the amendments will also require a court to obtain a new report even though a recent report on the offender might contain all the information that the court needed to bring out the welfare arguments. I do not believe that that is necessary. In my view, the amendments are unnecessarily wide in terms of age and unnecessarily burdensome in terms of bureaucracy.
My noble friend Lord Balfour referred to Clause 34 amending part of the Criminal Justice Act 1991. He said that if the amendments were agreed they should be added to Schedule 4 and not to Schedule 9 because, in his view, Schedule 4 affects England and Wales and not Scotland, whereas Schedule 9 refers to the United Kingdom. My noble friend was kind enough to warn me that he was going to refer to that point. It agitated me enormously. However, I became so excited about answering a Question on identity cards earlier this afternoon that I failed to apprise myself of the proper information for my noble friend. Nevertheless, I believe that I am correct in saying that Clause 34 only extends to England and Wales. Clause 152(15) provides that amendments in Schedule 9 have the same extent as the enactments which they amend. Part I of the 1991 Act extends only to England and Wales. Therefore, while I shall consider my noble friend's exposition more carefully to ensure that we have got it right, I believe that I am right to assure him that it is my view that we have. However, I shall certainly consider the point.
§ Lord Elton
In the parenthesis between my noble friend and the noble Baroness, perhaps I may put in my little fourpennyworth. I am partially reassured by what my noble friend said. I can see that there are cases where a custodial sentence is inevitable and others where, perhaps, it is unthinkable. Under those circumstances, the first leg—that is, paragraph 34(2) of Schedule 9— need not be activated. That is the provision which deals with custodial sentences.
Sub-paragraph (3) deals with community sentences for which there is a less stringent requirement for the 18 year-old; indeed, there is none as it is made entirely optional. For the juveniles, those of 17 years of age and under, we have the same restriction about there having been sight of an earlier report.
However, my noble friend has not quite relieved my mind about the case where there is such a report which is, let us say, 12 weeks old. Such a report may look pretty new. The court may well then decide under paragraph 34(2) to impose a custodial sentence on the basis of the report, though there may actually have been a dramatic change in the circumstances leading to the likelihood of reoffending. If the intention of custody is to prevent reoffending—as is the theme of the Bill— then such a change in circumstances must be relevant. Can my noble friend tell the Committee how the court is to be made aware of that fact? My noble friend said 170 that the court will know the juvenile, but how will it know him other than through the report which, did the court but know, is already out of date.
My noble friend said that he wanted to put in his "fourpennyworth". Of course, he is entitled to do so. I believe that I should try to answer his last speech because my noble friend seems to like to make four speeches on each amendment; that is his prerogative.
I must explain to my noble friend—and, indeed, to Members of the Committee—that the Home Secretary made it perfectly clear that the courts will use their discretion sparingly and with care. In the normal course of events the court will ask for a pre-sentence report. But, obviously, if the previous pre-sentence report is 12 weeks' old, and the court is in any doubt as to whether it is out of date, those concerned will ask for a new report. But, on the other hand, if the court has received a report on the same individual only two weeks earlier it would not be surprising to think that such a report would have a similar bearing on any new report produced. Therefore, in those cases, it would seem an unnecessary duplication to ask for yet another report which is likely to be very similar to that which the court has already received. However, if there is any doubt the court will, of course, ask for a further report.
§ Baroness Mallalieu
I am grateful to all speakers from all sides of the Committee who have taken part in the debate. The noble Earl piloted through the; legislation which introduced the requirement in 1991. From all that the noble Earl has said today I am still unclear as to where legislation has fallen down so as to require the changes that he now seeks to introduce. The: noble Earl said that the views of judges and magistrates have been taken into account by the Government in bringing such changes before this Chamber. However, the council of the Magistrates' Association agreed at its meeting earlier this month that it would oppose the Bill's abolition of mandatory pre-sentence reports for offenders under the age of 21.
The noble Earl talked about cases where reports were unnecessary before a substantial custodial sentence was inevitable. But, even there, a pre-sentence report can contain vital information about the culpability or the dangerousness of the offender which may well affect the ultimate length of the sentence.
I listened with the greatest care to the Minister's reply in the hope that there might be some shred of comfort that the Government are aware that, perhaps, their proposal is unsatisfactory in a number of respects. I had also hoped that what has been said by other Members of the Committee—some of whom have the greatest of experience in the area, both as magistrates and, indeed, as the writers of reports—might have produced a shadow of self-doubt. However, I am afraid that there has not been one. In those circumstances, I must test the opinion of the Committee.
§ On Question, Whether the said amendment (No. 19) shall be agreed to?
§ Their Lordships divided: Contents 89; Not-contents, 184.172
|Division No. 1|
|Addington, L.||Lawrence, L.|
|Airedale, L.||Listowel, E.|
|Allen of Abbeydale, L.||Lockwood, B.|
|Annan, L.||Longford, E.|
|Archer of Sandwell, L.||Mallalieu, B.|
|Ardwick, L.||Masham of Ilton, B.|
|Ashley of Stoke, L.||Mason of Barnsley, L.|
|Avebury, L.||McIntosh of Haringey, L.|
|Beaumont of Whitley, L.||McNair, L.|
|Bonham-Carter, L.||Merlyn-Rees, L.|
|Boston of Faversham, L.||Meston, L.|
|Broadbridge, L.||Mishcon, L.|
|Bruce of Donington, L.||Molloy, L.|
|Carmichael of Kelvingrove, L.||Monkswell, L.|
|Carter, L.||Morris of Castle Morris, L.|
|Chapple, L.||Mottistone, L.|
|Clinton-Davis, L.||Mulley, L.|
|Darcy (de Knayth), B.||Nicol, B.|
|David, B.||Parry, L.|
|Donaldson of Kingsbridge, L.||Perry of Walton, L.|
|Donoughue, L.||Peston, L.|
|Dormand of Easington, L.||Pitt of Hampstead, L.|
|Ennals, L.||Ponsonby of Shulbrede, L.|
|Ewing of Kirkford, L.||Rea, L.|
|Faithfull, B.||Richard, L.|
|Falkland, V.||Robson of Kiddington, B.|
|Fitt, L.||Rochester, L.|
|Geraint, L.||Rodgers of Quarry Bank, L.|
|Glenamara, L.||Seear, B.|
|Gould of Potternewton, B.||Sefton of Garston, L.|
|Graham of Edmonton, L.||Serota, B.|
|Gregson, L.||Shaughnessy, L.|
|Harris of Greenwich, L.||Southwark, Bp.|
|Haskel, L. [Teller.]||Stedman, B.|
|Hollis of Heigham, B.||Stoddart of Swindon, L.|
|Holme of Cheltenham, L.||Taylor of Blackburn, L.|
|Howie of Troon, L.||Tenby, V.|
|Hughes, L.||Tordoff, L.|
|Hylton, L.||Wallace of Coslany, L.|
|Jay of Paddington, B.||Warnock, B.|
|Jenkins of Putney, L.||Whaddon, L.|
|Kagan, L.||White, B.|
|Kilbracken, L.||Wigoder, L.|
|Kinloss, Ly.||Williams of Elvel, L.|
|Aberdare, L.||Byron, L.|
|Ackner, L.||Cadman, L.|
|Addison, V.||Caithness, E.|
|Aldington, L.||Campbell of Alloway, L.|
|Alexander of Tunis, E.||Campbell of Croy, L.|
|Annaly, L.||Carnarvon, E.|
|Archer of Weston-Super-Mare, L.||Carnegy of Lour, B.|
|Arran, E.||Carnock, L.|
|Ashbourne, L.||Carr of Hadley, L.|
|Astor of Hever, L.||Chalker of Wallasey, B.|
|Astor, V.||Charteris of Amisfield, L.|
|Attlee, E.||Chelmsford, V.|
|Balfour, E.||Clanwilliam, E.|
|Banbury of Southam, L.||Clark of Kempston, L.|
|Bancroft, L.||Colnbrook, L.|
|Barber of Tewkesbury, L.||Colwyn, L.|
|Barber, L.||Constantine of Stanmore, L.|
|Belhaven and Stenton, L.||Cox, B.|
|Blatch, B.||Craigavon, V.|
|Blyth, L.||Cranborne, V.|
|Boardman, L.||Crathorne, L.|
|Borthwick, L.||Crickhowell, L.|
|Boyd-Carpenter, L.||Cross, V,|
|Brabazon of Tara, L.||Cumberlege, B.|
|Braine of Wheatley, L.||Dacre of Glanton, L.|
|Brigstocke, B.||Davidson, V.|
|Brookes, L.||Dean of Harptree, L.|
|Brougham and Vaux, L.||Denham, L.|
|Burnham, L.||Denton of Wakefield, B.|
|Butterworth, L.||Dixon-Smith, L.|
|Donegall, M.||Moyne, L.|
|Dormer, L.||Munster, E.|
|Dundonald, E.||Murton of Lindisfarne, L.|
|Eden of Winton, L.||Napier and Ettrick, L.|
|Ellenborough, L.||Nelson of Stafford, L.|
|Elliott of Morpeth, L.||Nelson, E.|
|Ferrers, E.||Norfolk, D.|
|Fraser of Carmyllie, L.||Norrie, L.|
|Fraser of Kilmorack, L.||Onslow, E.|
|Gardner of Parkes, B.||Oppenheim-Barnes, B.|
|Gibson, L.||Orkney, E.|
|Gilmour of Craigmillar, L.||Orr-Ewing, L.|
|Gisborough, L.||Oxfuird, V.|
|Goschen, V.||Palmer, L.|
|Gray of Contin, L.||Park of Monmouth, B.|
|Grimston of Westbury, L.||Pearson of Rannoch, L.|
|Halsbury, E.||Peel, E.|
|Hampden, V.||Pender, L.|
|Hardinge of Penshurst, L.||Perry of Southwark, B.|
|Harlech, L.||Peyton of Yeovil, L.|
|Harmsworth, L.||Plan of Writtle, B.|
|Harrowby, E.||Plummer of St. Marylebone, L.|
|Hayhoe, L.||Quinton, L.|
|Hemphill, L.||Rankeillour, L.|
|Henley, L.||Rees, L.|
|Hertford, M.||Renfrew of Kaimsthorn, L.|
|Hives, L.||Renton, L.|
|Holdemess, L.||Renwick, L.|
|HolmPatrick, L.||Rippon of Hexham, L.|
|Hood, V.||Rodger of Earlsferry, L.|
|Howe, E.||Romney, E.|
|Hylton-Foster, B.||Saint Albans, D.|
|Johnston of Rockport, L.||Saint Oswald, L.|
|Kimball, L.||Saltoun of Abernethy, Ly.|
|Kitchener, E.||Sanderson of Bowden, L.|
|Knollys, V.||Seccombe, B.|
|Lane of Horsell, L.||Selborne, E.|
|Lauderdale, E.||Simon of Glaisdale, L.|
|Lindsay, E.||Skelmersdale, L.|
|Lindsey and Abingdon, E.||St. Davids, V.|
|Liverpool, E.||Stanley of Alderley, L.|
|Long, V.||Stewartby, L.|
|Lucas of Chilworth, L.||Stodart of Leaston, L.|
|Lucas, L.||Strafford, E.|
|Lyell, L.||Strange, B.|
|Mackay of Ardbrecknish, L.||Strathclyde, L.|
|Mackay of Clashfern, L. [Lord||Strathmore and Kinghorne, E.|
|Macleod of Borve, B.||Sudeley, L.|
|Mancroft, L.||Swinfen, L.|
|Manton, L.||Swinton, E.|
|Marlesford, L.||Teviot, L.|
|McColl of Dulwich, L.||Thomas of Gwydir, L.|
|Melville, V.||Trefgarne, L.|
|Mersey, V.||Trumpington, B.|
|Middleton, L.||Ullswater, V. [Teller.]|
|Milverton, L.||Vaux of Harrowden, L.|
|Monckton of Brenchley, V.||Vivian, L.|
|Monk Bretton, L.||Wakeham, L. [Lord Privy Seal.]|
|Monteagle of Brandon, L.||Whitelaw, V.|
|Morris, L.||Wise, L.|
|Mountevans, L.||Wynford, L.|
|Mountgarret, V.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5. 36 p. m.
§ Clause 24 [No bail for defendants charged with or convicted of homicide or rape]:
§ On Question, Whether Clause 24 shall stand part of the Bill?
§ Lord Mottistone
I find Clause 24 rather repulsive. Perhaps I should mention that we are now leaving the subject of young people and moving on to bail. Perhaps that will cause a different sort of atmosphere. As the Committee will see, in Clause 24 it is planned to make 173 it statutory that bail will not be granted to people who have been charged or convicted of offences of murder or rape and associated offences if they have done the same thing before. This particular subject was debated at some length in another place. The Minister, my honourable friend Mr. Maclean, said,The Government believe that in most cases bail decisions should be at the discretion of the courts".—[Official Report, Commons Standing Committee B, 25/11/94; col. 280.]He then produced an argument as to why that should not apply in the particular cases of the offences in Clause 24.
Having read the debate that occurred in another place carefully—there was a lengthy debate of three-quarters of an hour which started at 3.45 a.m. and ended at half-past four in the morning—I must say that the people taking part in the debate were remarkably coherent in what they had to say. But all the same, I find the Government's argument most unconvincing. I am surprised that the people who were present during the debate allowed it to go through. I hope that if there is a convincing case, my noble friend on the Front Bench will produce an argument which will be more satisfactory than that produced by his honourable friend in January.
It is a basic point that automatic refusal of bail must be bad in principle. The granting of bail is a judicial decision and should remain discretionary in statute. That is the basis of the whole argument. Quite clearly the offences concerned are very grave, but given the requirement for the court to state its reasons—it has to do this—when not granting bail, and the prosecution's right of appeal under the Bail (Amendment) Act 1993, the provision of this clause is both unnecessary as well as being undesirable.
Of course, it would be extremely unusual to grant bail in those circumstances, but it is possible to envisage instances where that might be appropriate. Indeed, in another place an example was produced of a case of a man who when aged 15 was convicted of attempted rape. Some 40 years later his mother had an incurable disease and wanted desperately to die, and he assisted her to do so. In such circumstances under this clause he would automatically be refused bail, yet it is a case in which a court might allow bail because of the circumstances and because he had lived an ordinary life for 40 years, having sown his oats as a young man.
It is difficult to find an example where this provision might be appropriate. In fact, cases in which courts would give bail for the type of offences with which we are concerned, which have been committed more than once, are very unlikely ever to occur. Therefore, why do we need this lengthy clause in the Bill? It goes against the principle of bail being a matter for the courts and not for statute.
Therefore, I hope that my noble and learned friend who is to reply will be able to produce a much stronger argument than his colleague, or will take this away and say that it is an unnecessary addition to legislation and the Government will either take it away now or remove it at a later stage. I hope that that will be the outcome.
§ Baroness Mallalieu
I wish to support the noble Lord, Lord Mottistone. The granting of bail must be a 174 matter for judicial discretion, exercised either by a judge or a magistrate. In my experience in the criminal courts, bail in cases of this severity is not granted either easily or routinely. Where there are police objections and the offence is a serious one both magistrates and judges are today fully aware of the risk they run and the serious criticisms that they will face if their assessment proves to be wrong. They tend, if anything, to err on the side of caution.
To take a less extreme example than the one which the noble Lord, Lord Mottistone, produced, there may be a case in which a man has been convicted of a serious crime when he was very young. After his. sentence he may well have returned to society and made a decent life for himself with a wife, a family and a job. Subsequently, many years later, he may be accused of a serious crime. For example, in the case of manslaughter, which is one of those set out in this provision, that could be the result of using excessive force to defend himself when he himself was attacked, when responding to provocation, or when killing without the intention of causing serious harm. Under this provision the court would have no power whatever to grant him bail, despite his family, his work, his community ties and his many years as an exemplary citizen. The offence of which he may subsequently be accused may be the result of exceptional circumstances or a momentary abberation, but in neither case could the court look beyond the bare facts of his earlier conviction and the charge which he now faced.
Hard rules surely make bad law. If one cannot trust magistrates and judges to exercise discretion properly in granting bail, it is a very short step to saying that one cannot trust them to sentence properly either. It is a short step from there to saying that bail, and even sentences, are to be determined in every case according to some rules or formula which take no account of personal circumstances. These must surely be matters for judicial discretion, properly exercised.
§ 5.45 p.m.
§ Viscount Tenby
I rise to support the noble Lord, Lord Mottistone, with whom it is a pleasure to be in harness again.
In normal circumstances it is most unlikely that any court would grant bail where homicide, rape or any of the other categories of crime is alleged. The granting of bail—the matter of a defendant's freedom—is, as the noble Lord said, a judicial function. The right of the court should not be removed in this respect.
It is difficult to know the background to this proposal. It may be public concern over the granting of bail in unsuitable cases, however inappropriate that may be in this particular instance, and decisions which in certain circumstances may have led to unfortunate consequences. Of course magistrates make mistakes. I am not sure, however, that proportionately their percentage of mistakes compares unfavourably with more senior branches of the law. Mistakes have been made in the past and no doubt will be made in the future. That is in the nature of things.
In this case, however, the removal of a bench's right to grant bail is an unwarrantable diminution of its 175 power. It would be unusual to say the least for a bench to grant bail to someone accused of either homicide or rape, let alone if that person had already been found guilty of such a crime on an earlier occasion, which are the circumstances to which the provision contained in the Bill relates. The latter contingency is almost unthinkable. But I have to tell the Committee that as a magistrate I have myself granted bail to a defendant accused of rape. I cannot now recall the exact circumstances, but at the time my colleagues and I were satisfied that there were exceptional conditions to justify such a decision.
In this case the offences include attempted rape and manslaughter, that notoriously dodgy charge, in layman's terms, although it may not be so to the law itself. My point is that to make such an exclusion where there is little or no evidence to prove that it is necessary is merely to diminish the power of the justices and in effect to say to them, "We do not fully trust you to do the job and make the decisions you were appointed to make".
§ Lord Wigoder
I too have doubts about the wisdom of the clause although I can see that it is useful for obtaining headlines of the "Government Tough On Crime" type.
There is a serious problem as to whether a defendant who is charged with a grave offence and who has previously committed a grave offence should be granted bail. There are only two possible approaches. One is to say that we must leave the decision to the discretion of magistrates, subject to a right of appeal by the prosecution. The other is to try to make fixed rules, which is the course which the Government have followed with this clause.
I accept that if the matter is left to the discretion of the magistrates, even with a right of appeal for the prosecution, it is possible that a mistake will turn out to have been made. It is always possible to be wise after the event. It is possible that there may be serious consequences. On the other hand, to attempt to provide, by fixed rules of this type, the conditions under which bail cannot ever be granted and to remove the discretion of the magistrates leads to results that verge on the eccentric.
Perhaps I may take two examples. First, a terrorist who commits a terrorist murder and is either released from prison or escapes from prison and within days is caught in possession of a vast quantity of explosives is not caught by these rules. In that case it can safely be left to the discretion of the magistrates as to whether bail should be granted.
Secondly, let us take an example of a female defendant instead of a male defendant. Take the case of a woman who has been ill treated by her lover or her husband over a period of years and eventually is driven to killing him. That woman may be convicted of murder and released after a short period of time. If she is lucky, as the law now is she may be convicted of manslaughter and given a nominal custodial sentence of three months, six months or 12 months in prison. Nobody would regard her as a danger to the public in any way. Perhaps 176 20 or 30 years later she is in a public house and a man makes an offensive remark to her and she gives him a push. The man falls down. He has an eggshell skull and kills himself as a result of a blow to the head. That is manslaughter. There is no argument about it. If that woman were arrested and charged with manslaughter, she will almost certainly be given a totally nominal sentence. However, she would have to rot in a remand prison for week after week awaiting trial because of these rules. That cannot really be what the Government wish to happen.
§ Lord Harris of Greenwich
I see no purpose in this provision other than in political public relations terms. As the noble and learned Lord will be aware, last year we passed an amendment to the Bail Act. What did it provide? It provided that if the Crown Prosecution Service was concerned about a decision of a magistrates' court to grant bail, it had the right to appeal; and the person concerned would have to remain in custody. That is the law. Why therefore do we require this provision? Do we have no trust, no confidence whatever, in our magistrates' courts? If one is to start having lists of categories of offences, as are contained in the Bill, I find it curious that we have cases of the kind cited by my noble friend Lord Wigoder and we leave out, to give another example, people involved in large-scale drug trafficking. Those offences apparently are not as serious as those outlined by my noble friend.
It seems to me that the provision is a profound mistake. The law as it exists as present gives the Crown Prosecution Service an absolute right to keep a person in custody pending a decision by a judge if they are gravely concerned about the decision of a magistrates' court. I can see no case whatever for this provision.
§ Lord Hylton
I was impressed by the way in which the noble Lord, Lord Mottistone, moved the amendment. I also note that so far none of the Members of the Committee has spoken in favour of keeping the clause as it is.
As a mere layman, perhaps I may draw attention to subsections (4) and (5) which appear to me to be far too widely drawn. I believe that it is a matter that the Government should reconsider.
§ Lord Campbell of Alloway
I am worried about the amendment. There are no political overtones in this matter. It is a matter of procedure.
The provision is far too interventionist. It is far too selective. I give two examples. What about a very serious armed robbery? What about a very serious case of drugs? I give just two examples. The provision is too selective. It impinges upon the province of the discretion of the magistrates, to my mind to an unacceptable degree.
On a question of drafting, I do not understand the provision. It may be my own fault. If the Committee considers subsection (3), the third line states "any such offence" and continues with the words, "or of culpable homicide". That can only mean attempted murder, murder or manslaughter. Therefore why do we have the words "any such offence" and then specify three of those offences, with the reference, 177and, in the case of a previous conviction of manslaughter or of culpable homicide"?What is the drafting purpose of that repetition? I do not understand. My hope is that, as a gesture of goodwill, my noble friend will take the matter back to reconsider it. From a professional point of view I find it almost impossible to support the provision as drafted.
§ Lord Mottistone
Before my noble friend sits down, he began by saying that he did not like the amendment. I believe that he referred to the clause.
§ The Lord Advocate (Lord Rodger of Earlsferry)
I must confess that for one moment I rather hoped that my noble friend Lord Campbell of Alloway was going to break the somewhat depressing uniformity of the Committee's comments on this matter, but, alas, that was not to be.
I take up the point made by my noble friend Lord Campbell about the drafting. I believe that the drafting is satisfactory. It provides:This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by … a court in any part of the United Kingdom of any such offence or of culpable homicide".The principal part, where the offences are listed, applies only to courts in England and Wales where manslaughter is the offence. But it is envisaged that a person may, for example, have been convicted of culpable homicide previously in a Scottish court. It is to take that matter into account that the matter of culpable homicide is mentioned.
Taking a slightly broader view of the matter one has to notice that it is very carefully confined in the case of manslaughter, or culpable homicide (where that offence is the previous conviction) to cases where the person was then sentenced to imprisonment or, if he were a child or young person, to long-term detention under the relevant enactments.
The purpose is to keep the scope of the clause as narrow as possible. The Committee criticised the provision in one sense for being, on the one hand, too narrow and, on the other, too broad. But it is narrowly drafted precisely because the Government accept that it is very unusual indeed for the legislature to be seeking to enter into this specific area which, as a number of Members of the Committee said—in particular the noble Viscount, Lord Tenby—is normally a matter for the. discretion of the magistrates. I accept that matters of bail, overwhelmingly, are dealt with by the courts and the magistrates. I, of course, accept that when the measure comes into force, the appeal provisions will allow those matters to be taken up where the prosecution is not satisfied with the decision. Nonetheless, the government view is that there are indeed cases—they are narrowly defined—where the element of violence in both the previous conviction and the charge which a person now faces indicates that the risk is simply not acceptable. The noble Viscount, Lord Tenby, said that magistrates make mistakes. The noble Lord, Lord Wigoder, accepted that even courts make mistakes. The trouble is that those mistakes can have tragic results. The view has been taken that it really is not proper to ask 178 members of the public to run that risk, even if the risk is being run only in a small number of cases. There is only a limited number of cases. We think it right that the matter should be decided on the basis of a rule laid down by Parliament on the face of the statute, and that in this narrow, limited range of cases, there should not be any bail.
I accept that in other cases the issue is a matter entirely for the magistrates and for the judges. But although it is only a limited number of cases, the risk of what might happen if something went wrong is so grave that members of the public should not be asked to run it. For that reason we believe that the provision should stand.
§ Lord Campbell of Alloway
Before my noble and learned friend sits down, since he pins his reasoning on the element of violence, will he accept that in the case of manslaughter it is not always an essential ingredient of the crime?
§ Lord Rodger of Earlsferry
I accept that there are various kinds of manslaughter, but there must always be some element of violence involved in the crime.
§ 6 p.m.
§ Lord Wigoder
Does the noble and learned Lord accept that the provisions as drafted would catch the woman whose case I postulated? Most people would say that on each occasion she was morally totally innocent.
§ Lord Rodger of Earlsferry
I accept that it will catch people at extremes of the range but in the case of people involved in manslaughter on an earlier occasion, it is only where that has attracted a sentence of imprisonment. We recognise that there may be cases where manslaughter does not possess the necessary quality to attract that kind of provision. For that reason, the qualification is built in.
§ Lord Wigoder
The qualification is built in if the manslaughter happens to be the offence for which the person is subsequently arrested.
§ Lord Harris of Greenwich
If the noble and learned Lord will forgive me for saying so, he has provided no adequate explanation as to why the provision is necessary. He said at the beginning of his speech that some Members of the Committee suggested that the provision should be drawn more narrowly and others that it should be drawn more widely. The point is that the provision is arbitrary and capricious. That is the centrepiece of our objection to it.
The noble and learned Lord passed rapidly over the amendment to the Bail Act last year which gives the: prosecution the right to appeal to a judge if it believes that a magistrates' court has wrongly given someone bail. In the light of that, why is it necessary to have the. provision at all? It seems astonishing.
I find it difficult when the noble and learned Lord tells us that the cases about which he is worried are those, involving significant violence. As his noble friend pointed out, why is armed robbery excluded? In 179 addition, large-scale drug traffickers are excluded. There seems no serious purpose behind the amendment, and I regret to say that the noble and learned Lord has given no adequate explanation in defence of what is provided in the clause.
§ Lord Rodger of Earlsferry
The provision has not been drawn more widely because we do not wish to trespass more on the discretion of the magistrates and the courts than we consider necessary. That is why we have not gone further and encompassed other possible crimes which could have been included. We have limited the provision to those areas where we think the measure is proportionate and justified.
I accept that the existence of an appeal provision is of assistance. As a result of that, whether or not the risk is small and even though the chances of a disaster are small, the possibility of one occurring is a risk against which the public are entitled to be protected. That is the thinking behind the clause.
§ Lord Hylton
Can the noble and learned Lord explain why, under subsection (5) of Clause 24, a person who has been given an absolute discharge should be treated as though he had been convicted? It seems extraordinary, on the face of it.
§ Lord Harris of Greenwich
Before the noble and learned Lord replies, will he deal with the other point made by my noble friend Lord Wigoder? If we are to have the list which, in itself, is wholly undesirable, why apparently is conspiracy to cause explosions all right? Is that the Government's position?
§ Lord Rodger of Earlsferry
I am happy to take the matter away and consider whether it should be added to the list. As regards the point which the noble Lord, Lord Hylton, mentioned, what is required is that the provision should cover situations where there has been a conviction, even though the result is that the person is put on probation or there is an absolute discharge. With that kind of disposal, the provision could apply in such cases under this clause.
§ Lord Elton
I have not taken part in the debate but there seems to have been a re-statement of the problem rather than an explanation of the reason for inclusion of a person given an absolute discharge. To a layman, that sounds the next best thing to an acquittal. Yet under this provision that person would be treated as being just as culpable as someone convicted and up to the elbows in blood.
§ Lord Campbell of Alloway
If the matter is taken back—and surely it should be, with respect—can my noble and learned friend say whether consideration might be given to this proposal? Instead of drafting the provision in the form of a fixed mandatory rule which impinges on the exercise of discretion, it should be cast in the form of guidance which is not mandatory.
§ Lord Rodger of Earlsferry
The purpose behind the clause is the one I have stated. I do not think that casting the provision in the form of guidance would meet what we see as being a necessary measure to deal with the 180 situation. After all, guidance would do little more than leave the matter to the discretion of the judges. Because of the risk that that might be used in a wrong way with tragic results, this clause has been included. I shall have to write to Members of the Committee with details of particular points, but various forms of disposal can follow from such offences. In order to cover those disposals—which include probation and which would not be recorded as a conviction—the definition of "convicted" is widened in terms of the earlier part of the clause.
§ Viscount Tenby
I do not wish to prolong the discussion, one of my hobbies is not the compilation of criminal statistics, the Committee may be surprised to hear. However, are there many occasions on which people have been accused of attempted murder, manslaughter, rape or attempted rape and who have been found guilty of a similar offence? I find it almost incredible that such a situation could have arisen. I wish to know what basis the Home Office has used to make the Government feel that such a provision is necessary in the Bill.
§ Lord Rodger of Earlsferry
I do not know whether I can help the noble Viscount with the exact statistics he requires. Of the people released from life imprisonment on licence between 1972 and 1990, 56 have been reconvicted of a grave offence, including, for example, arson, serious wounding, robbery, aggravated burglary and so on.
§ Lord Rodger of Earlsferry
People have been convicted of such offences, so there are those who offend even though they have been dealt with for the most serious crimes.
§ Lord Mottistone
The real point at issue is this. In the cases which my noble and learned friend has just quoted, when those people came again before the courts, were they given bail? Do the statistics give those facts?
§ Lord Rodger of Earlsferry
Alas, they do not allow us to go into whether they were granted bail. It is not possible for me to predict exactly how many people would be covered by the provision or how many would be prevented from re-offending while on bail. It is not based on any statistics but on the proposition that even if the risk were only to occur on a few occasions, that risk should not be run.
Lord Mclntosh of Haringey
The Government could be forgiven if they said that it was difficult to forecast the number of cases that might occur in the future. I do not think that they can be forgiven for saying that they have brought forward this clause without having investigated the number of cases that have occurred in the past. We asked first of all (a very modest requirement): how many people have been convicted of these offences, having been convicted of comparable offences before? We cannot get an answer to that. Then we asked: how many people are charged having been convicted before and are then released on bail? That is 181 a rather critical point, but there is no answer on that. Then we asked: how many people who have been charged, have been convicted before and have been released on bail have committed an offence? There is no answer on that. If there are no answers to any of these questions, surely there is a requirement that there should be some evidence of a mischief which is supposed to be remedied by what is virtually a full page of legislation.
§ Lord Rodger of Earlsferry
I think I have said quite plainly that the basis of this clause is that, however small the risk may be and even when we cannot predict how often it may occur, it is nonetheless a risk that should simply not be run. That is the proposition upon which this particular legislation stands; and that is the proposition that I put before the Committee.
§ Lord Mottistone
This is extraordinary. Some of us have taken a lot of trouble to try to think up examples where possibly somebody commits a serious offence for a second time and could then be allowed bail, perhaps on the grounds that there has been a long gap or that all kinds of special factors apply. I think that all the examples were invented—certainly the ones that I have heard of seem to me to have been invented in order to prove the case.
Before the Government start saying, "Look, we can't trust the magistrates or the judges in regard to bail for serious offences", they must be able to tell us that there is a good example of when such a case occurred. Even one example would help. It would give us some thought. When my noble friend (if I may so describe him) Lord Tenby said that magistrates sometimes make mistakes, he was not saying that they make mistakes about giving bail to people who have committed murder twice! He was saying that sometimes they make mistakes when they do not send noble Lords who exceed the speed limit to prison when they should, or whatever. That is quite a different consideration. I see that my noble friend is nodding at me.
This is much too serious a matter. It relates to trust in the courts on the part of the Executive. The courts are set up in this country to conduct the law to the best of their ability on behalf of the Sovereign, separately from the Executive. It is not a simple matter which can be dealt with on the assumption that, even though there is no proof that there has been one in the past, there might be a case in the future which the country thought was dreadful and then no doubt the Home Secretary of the day (which might be in 30 years' time) would get tremendous stick from people because he had not introduced a law to make sure that the courts did the sorts of things that clause 24 requires them to do. That really is absurd.
I honestly ask my noble and learned friend to take away the thoughts that have come from all sides of the Committee. Not one Member of the Committee has opened his mouth to say that he understands what my noble and learned friend is at. The explanation that he gives is really not good enough. Is he prepared to come back to me before we get to the next stage of the Bill with a letter saying, "These are examples of what happened when people who committed offences twice or committed one offence within the terms of this Bill 182 were allowed bail"—I believe that that part was commented on by the noble Lord, Lord Hylton—"the second time they were charged, and that is enough to show why bail should not be given"?
If my noble and learned friend can say that he will write to me and give me examples of where that has actually happened and bail has been given by either the magistrates' courts or the Crown Courts, then I shall be very happy. I really do not want to take this matter to a Division, because not enough Members have been in the Chamber to hear what has been going on, but if he cannot do that I shall certainly come back to this issue at the next stage. It would be very, very much easier not to have to do so. I hope my noble and learned friend will give me the sort of evidence that I think is essential before we can accept this lack of trust in the courts by the Executive.
§ 6.15 p.m.
§ Lord Rodger of Earlsferry
The Committee can rest assured that, if I had had examples which I could have given in the Committee, I would of course have done so. I did not seek to say to the Committee that I had such examples. I simply put the matter on the basis that, without being able to cite examples of the kind that my noble friend desired, my proposition to the Committee was that, even though I could not identify such cases, nonetheless Parliament was entitled to take the view that the risk was not one that should be run; and if in 20 or 30 years' time some child was killed because of a mistake made in that situation, then that would not be acceptable. If it can be prevented in this way, then the Government's view is that it should be prevented. Therefore, although I have listened most carefully to what has been said, I doubt whether I can give the assurance that my noble friend seeks.
§ Lord Ackner
I listened to the noble and learned Lord with mounting depression. The risk of which he talks has been in existence for years and years and years. Yet he can give no example of the risk having been wrongly taken. He fails in that regard while seeking to justify interference with judicial discretion. This is an excellent example of the Executive, in my respectful submission, totally overlooking the essential division of functions. If the noble and learned Lord cannot give any examples, he cannot justify the interference; and I should be very sad if, on the wholly negative note echoed by the noble and learned Lord, we let the matter stay as it is today.
§ Lord Harris of Greenwich
I hope that the noble and learned Lord will report to the Home Secretary the general attitude of the Committee. He has been put in an extremely unpleasant and disagreeable situation, having no direct personal responsibility for this Bill and acting as an advocate for the Home Office. If the noble and learned Lord is not able to give us any examples, it means that a decision was taken to put this clause in the Bill without any such evidence. That seems to me to be an extraordinary proposition. As I have indicated, I hope that the noble and learned Lord will report to the Home 183 Secretary the overwhelming feeling of the Committee on this matter. He will of course realise that we shall certainly come back to this matter at Report stage.
§ Lord Rodger of Earlsferry
As I said, nobody could fail to be impressed by the strength of the opinions that have been expressed. I have tried to put to the Committee the thinking which lies behind this proposal. With the greatest possible respect to the noble and learned Lord, Lord Ackner, I would not say that it is an attempt on the part of the Executive to interfere: Parliament would be taking this decision—and the courts are always subject to the law of Parliament. I hear what Members of the Committee have said on the matter and I shall report those observations to the Home Secretary.
Clause 24 agreed to.
Clause 25 [No right to bail for persons accused or convicted of committing offence while on bail]:
§ Lord Harris of Greenwich moved Amendment No. 19A:
Page 15, leave out lines 34 to 42 and insert ("in paragraph 9, after sub-paragraph (d) there shall be inserted the following sub-paragraph—
(e) whether it appears to the court that the defendant was on bail in criminal proceedings on the date of the offence.".")
§ The noble Lord said: The noble and learned Lord will be relieved to hear that this concerns a much narrower question. It is little more than a drafting point. Nevertheless, I feel that the Committee should consider the issue and I should be interested to hear the noble and learned Lord's reply.
§ Clause 25 has the effect of reversing the presumption in favour of bail where a defendant is charged with an offence allegedly committed while on bail. In other words, the court will be empowered to remand the defendant in custody without any additional require-ment that there is a substantial likelihood of him absconding, offending or interfering with the course of justice if bail is granted. It is common ground that there has been a significant number of cases in which people on bail have allegedly committed other criminal offences. When that has happened it has caused great anger in the police service and elsewhere. But as a matter of common sense, the court which hears a bail application on behalf of a person who is already on bail for having committed another alleged offence is highly likely in any event to remand that person in custody. But it would have to give reasons for that decision. I think that that is right.
The noble and learned Lord may be aware of the views of the Law Society on this matter. It said:
The presumption of innocence before trial requires that there is a presumption that the accused is entitled to bail. This presumption can be rebutted if the prosecution can show that there are substantial grounds for believing that if granted bail the accused would abscond, commit further offences or interfere with witnesses or obstruct the course of justice. If the accused is already on bail, the judiciary will take that into account when deciding whether or not the prosecution has established grounds for rebutting the presumption".
§ This amendment thus changes the clause to take account of that view, which is held by others as well as by the Law Society. It requires the court, when making 184 bail decisions, to have regard to the fact that the defendant was on bail at the time of the alleged offence. I feel that that probably strikes the right balance. As I indicated, I should be very interested to hear what the noble and learned Lord has to say about it.
§ Lord Rodger of Earlsferry
As the noble Lord indicated, the effect of Clause 25 as it stands is to add to the exceptions to the general right to bail. Under the Bail Act there is, generally speaking, a right to bail and there are only a limited number of exceptions. The exception which it is proposed to add relates to the case in which the person has committed—it has to be noted that, again, the provision is narrowly drawn—an indictable offence or an offence triable either way and it appears that he did so when he was on bail already.
As the noble Lord said, that is unfortunately an all too common circumstance. It appears to the Government that a proper balance is struck by Clause 25 if one says that by offending in that way while he is on bail, such a person loses the right to bail which otherwise he would have. As the noble Lord knows, that is only the first stage because the mere fact of him not having a right to bail does not mean that he will not obtain it. The magistrates will thereafter have to consider all the various circumstances which are set out in paragraph 9 and which relate to the offender. The noble Lord wishes to add to that paragraph.
It seems to us that in that way a proper balance is struck. Someone who commits an offence while on bail forfeits the right to bail on a subsequent occasion, but all the circumstances are taken into account when the decision is taken on whether or not he should be granted bail. In that way and in this instance there is every trust and faith put in the decision of the magistrates.
§ Lord Harris of Greenwich
I indicated that I wanted to hear the response on this point from the noble and learned Lord. I shall reflect on what he said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 agreed to.
§ Lord McIntosh of Haringey moved Amendment No. 20.
After Clause 25, insert the following new clause: Application for bail (" .—(1) In determining a bail application, a court shall have regard to the appropriateness of the applicant's attendance at bail hostel. (2) In pursuance of subsection (1) above, the court may consider a report from the probation service.")
§ The noble Lord said: I do not know whether this is an amendment or a cry of pain. It is an appeal to the Government not to continue, on spurious grounds, reducing the number of places in bail and probation hostels. Until recently there were roughly 2,500 places in bail and probation hostels. Those hostels provide an effective alternative to remands in custody, which increase the prison population.
§ It has been generally agreed that over the period in which they have been in existence bail hostels have done an effective job. Some 40 per cent. of those charged have already been in prison and therefore would otherwise almost certainly have to be remanded in 185 custody rather than released on full bail. These hostels work. Two thirds of those in bail hostels complete their period there without in any way breaching the conditions of their referral to the bail hostel. In case anybody should think that there are a significant number of failures in the use of bail hostels, the figures show that only 10 per cent. of those in bail hostels are remanded into custody because of any offence committed while they are in the hostel. It must be remembered that a number of those charged are sent to bail hostels not because they have committed crimes of armed robbery or such offences but because they have committed crimes possibly of personal or family violence. If it can possibly be avoided, it is clearly neither desirable nor appropriate for such people, who certainly need to be protected and whose families need protection, to be put into remand prisons. So bail hostels, unlike prisons, do work. They have proved to be successful and have a good reputation in the penal system.
§ But what happens? On 4th April this year the Home Secretary closed 11 of the bail hostels with 270 places. That is more than 10 per cent. of the bail hostels in this country. The Government did not do that because the bail hostels do not work or are even claimed not to work, but because it was pointed out that last summer the occupancy rate was 64 per cent. rather than the preferred higher figure. On those grounds it is claimed that the hostels are poor value for money. That in itself is contestable, even if it were thought that public expenditure cuts of that kind were appropriate. By January 1994 the occupancy rate of bail hostels had increased to 77 per cent., which is only 3 per cent. off the figure which the Home Office itself recommends should be the natural occupancy rate of bail hostels. The Home Office says that because of the changeover that takes place, approximately 20 per cent. of the theoretical capacity should, in practice, remain vacant. The Home Office is therefore working with inadequate statistics, and the occupancy rate at the time the decision was taken was close to the recommendation of the Home Office itself. It is poor value for money as an economy because the cost of a remand in custody is of the order of £566 a week, whereas the cost of remand in a bail hostel is £145 a week.
§ At a time when the prison population is rising it is extraordinary that because of this faulty argument about occupancy rates the Government should make a deliberate decision to reduce the number of bail hostel places available and put more pressure on the prison service by increasing the number of remand prisoners. Therefore, although we recognise that the courts frequently have regard to the appropriateness of the applicant's attendance at a bail hostel, and we recognise that in making that determination they frequently consider reports from the probation service, without in any way reducing the independence of the courts we believe that it is right to show—by including this provision on the statute book—that this Chamber disapproves of a reduction in the proportion of bail hostels on purely financial grounds. I beg to move.186
§ 6.30 p.m.
§ Lord Elton
My noble and learned friend was not here for the debate on Clause 23 stand part when there was a long discussion which included a passage of significant remarks in regard to the appropriateness and effectiveness of bail hostels. In that exchange I mentioned that I was this morning briefly at the annual general meeting of the National Probation Council and I reported to the Committee—and do so now for the benefit of my noble and learned friend—the great anxiety expressed there that bail hostels should be fully used and that the Government should take initiatives to ensure that that was done. Reference was also made to the fact that on 2nd April, as the noble Lord, Lord Mclntosh, said, a percentage of hostels were closed by the Government.
I rise to say that I endorse the cry for greater use of bail hostels as an effective system and to ask my noble and learned friend by what other means that could be encouraged than by the amendment proposed by the noble Lord, Lord Mclntosh. If that is the only way, it is tempting to support it, which I do not wish to do unless I have to.
§ Baroness Seear
I rise to strongly support the amendment. It is not only the question of the immediate and relevant expense of keeping someone in a bail hostel and on remand in prison that should be considered. We must remember, particularly where women are concerned—though it is true to a lesser degree of men—that over 50 per cent. of the women held on remand do not ultimately receive a custodial sentence. It is outrageous that women, often young women with children, should spend time in prison in custody for weeks, sometimes extending to months, at great expense but also with great disruption to the family, because there is no place for them in a bail hostel. The whole stigma of being in prison and all that that involves is something we surely want to avoid and have an obligation to avoid for people who are proved in the end not to have committed an offence which justifies a custodial sentence. I therefore strongly support the increase rather than the diminution of the number of bail places available.
§ Lord Rodger of Earlsferry
There seems to be a view that the Government do not support the use of bail hostels. That is not the case. In recent years the Government have invested considerable sums and management effort in the hostel system. The result of that can be seen from the fact that as of 1988–89 there-were 1,770 places in the hostel sector; in 1992 another 630 or so places had been brought on stream, bringing the total number of places up to 2,400. Since that time a further 345 places have been brought into existence.
It is of course true to say, as was pointed out by the; noble Lord, Lord Mclntosh of Haringey, that the Government closed certain hostels and asked some authorities to consider closing others. That is partly because—one is familiar with this in other areas of life —sometimes one finds that with population shifts, and so forth, not all hostels are in places where they would 187 be most useful. Therefore, although there are planned closures, it is also intended to continue developing places but in areas where they will be needed.
Under the programme envisaged, and taking into account the closures envisaged, it is anticipated that by April 1996 there will be 2,680 hostel places. There is therefore no question of the Government taking a negative view of bail hostels. As of today the figures show that the occupancy rate for bail hostels is around 70 per cent. The latest figure I was able to obtain today shows that at present there are 700 vacancies in the bail hostel system. That is not something which we particularly welcome. Like the noble Baroness and others who spoke, the Government believe that the hostels perform an important role. They fall short of custody and therefore allow people to be dealt with, without the need for them to go into remand. That is obviously desirable in the kinds of cases to which the noble Baroness pointed. There is no question, therefore, of the Government not being committed to them.
In relation to the courts, the Government must accept that we cannot tell the courts that they must use the hostel system. At the end of the day it is a matter for the magistrates. The existence of hostels is drawn to the attention of magistrates, partly through their training and also because they receive information in relation to the national standards for bail hostels.
§ Baroness Seear
Perhaps I may ask the noble and learned Lord a question. This is highly relevant to what he was saying. Not so long ago it was said that magistrates' courts were not always informed, or did not have the information, about the availability of bail hostels in the area in which they worked. On occasion, people were placed on remand simply because the information was not made available at the right time as to what accommodation existed in the bail hostels. Can the noble and learned Lord assure us that there is now full and regular information before the courts as to what places are available in bail hostels when they are sentencing?
§ Lord Rodger of Earlsferry
I cannot tell the noble Baroness how it is done in all cases. I am stressing that magistrates are encouraged to visit their local hostels and become aware of their existence so that they will bear that alternative in mind when considering disposals. To some extent they have not been using them, and there may be various reasons for that. However, that does not arise from any hostility on the part of the Government. We are doing our best to draw these matters to the attention of magistrates and places will certainly be kept available. There is no question of cutting back.
Lord Mclntosh of Haringey
It is always welcome to have the assurance that the Government support bail hostels. But if that is the case I can only say that they are going about it in a very curious way because the history of the past six or seven months shows a very different situation. The decision to close 11 bail hostels and 270 places was announced in November 1993. The explicit reason given was that the occupancy rate had dropped to 188 64 per cent. in the summer despite the fact that it has been established for a number of years that occupancy rates in bail hostels do fall during the summer.
In the period between November 1993, when the decision was announced, and the closures taking place in April of this year, not only did the occupancy rate increase to 77 per cent.—in other words, very close to the Home Office recommendation—but when the decision was announced it aroused a storm in another place. I understand that 135 Members of Parliament, including many Conservatives, signed an Early Day Motion against the proposed closures. I believe that a very large number of protests were made to the Home Office and the Home Secretary from the legal profession and the courts.
Generally speaking, one can only say that if the Government are indeed supporting bail hostels they have not got their public relations very well organised. It is curious that if they have a policy of opening new bail hostels in areas where they are most needed they do not proclaim that at the same time as the programme of closures is announced. As far as I am aware, however, the Government have not announced any programme of new openings, but simply said that the objective is that in 1996 there will be close to 2,700 places.
It would be wise for the Government to look again at the presentation of their policy. I know that this is a matter which is normally said at Conservative Party conferences rather than from the Opposition Front Bench. The Government could do well to think about the way in which they present their policy if they are to secure any conviction.
I have no basis on which to disbelieve what the noble and learned Lord the Lord Advocate says about the Government's intentions and their desire to increase the number of places in future. This is not an amendment which has enough force—it is not an intrusion on judicial independence—to justify pursuing it to a Division. I hope that the point has been made that any further action that the Government take, not only to increase the availability of bail hostel places but to urge the courts and the magistrates' courts to make good use of them, will be welcomed from these Benches and, I believe, from all parts of the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 [Power for police to grant conditional bail to persons charged]:
On Question, Whether Clause 26 shall stand part of the Bill?
§ Lord Mottistone
I hasten to say to my noble and learned friend the Lord Advocate that, this time, far from not knowing what the purpose of the clause is I know it only too well because we are aware that the Royal Commission on Criminal Justice said it believed that the power embodied within the clause could lead to a substantial reduction in the number of persons held overnight in police cells. The Committee will find, on page xvii, at the beginning of the Bill, under "Financial effects of the Bill", that a reduction in the number of 189 persons held overnight is expected from 100,000 to 40,000. So it is quite clear that this particular clause is a moneysaver.
However, as regards Clause 24 in relation to the Executive, magistrates believe that restriction on personal liberty is a matter for the courts and not for the police. The police have a duty to bring the accused person to court as soon as is practically possible so that the bail decision can be made by the courts. The granting of bail is a judicial decision and should remain in the hands of the courts. If this provision goes through the courts will find themselves having to deal with breaches of conditions imposed by the police and not by the courts themselves. That is a most undesirable situation.
There is a strong feeling that the police already grant bail too easily, usually because they are unaware of the existing bail and of offending on bail. To carry out these powers fairly and effectively the police need access to criminal records which are accurate and reliable. The present system has many inaccuracies. Therefore, I believe that the error of having Clause 26 in the Bill is different. It is not a matter of the Executive not trusting the courts—which is disastrous—but the fact that the accepted powers of the courts to grant bail and restrict liberty are being taken away from them in an area which has nothing to do with the principles of the matter but only with whether it is going to save a lot of money.
I know that the Benches opposite always criticise us on this side for wanting to save money. We have to do that, but one has to draw a balance between doing that and trusting the judicial system of the country. To say that the authority for granting bail—which over centuries has been in the hands of the courts—should be delegated to police, who have a totally different function, needs to be considered very carefully. One wonders whether the Home Office has properly thought this through and whether it feels it right for magistrates —and no doubt the judiciary—to gain the impression that the Executive does not really believe that they can be trusted to get on with their job and deal with the granting of bail, and so on, which they have been empowered and entrusted to do for centuries.
This is a matter which is not of the same order of importance as Clause 24, but it means that Clause 26 is thoroughly undesirable as a matter of principle. I hope that my noble and learned friend will be able to give me some encouragement that he might persuade his ministerial colleagues to think again about this issue before they insist that it remain in the Bill.
§ 6.45 p.m.
Lord Mclntosh of Haringey
I supported the noble Lord, Lord Mottistone, very strongly in his opposition to Clause 24 of the Bill. Therefore, it is with some sorrow that I say to him that his opposition to Clause 26 is misconceived. I believe that he misunderstands the purpose of police bail if he thinks that it is a derogation from the powers of the courts to grant bail. Police bail is normally used not instead of bail granted by the courts, but before an accused person has the opportunity to come before the courts.
190 In practice, what happens is that the police grant bail to somebody who will then come before the courts in the morning, or at the next possible opportunity. Failing that power, they have to keep the person in custody overnight. The difficulty which they have is that although it is possible for them to give bail they cannot give it with conditions. As I understand it, that is what this clause seeks to provide. It is not even as though it were true that the conditions on which the police can grant bail cannot be challenged. If an accused believes that the conditions imposed are unreasonable or too burdensome, there is provision in Schedule 3 for those conditions to be challenged. I hate to say it from this Dispatch Box but, in practice, the provisions in Clause 26 are almost entirely benign.
A recent study of three courts in Wales, carried out by Anthea Hucklesby of the University of Glamorgan, found that 38 per cent. of defendants produced for their first court appearance from police custody had been kept in that police custody only so that the prosecution could suggest bail conditions and that the CPS and the police did not oppose bail. If the conditions could be imposed by the police beforehand, such defendants need not be kept in police custody in advance of the court appearance.
I hope that the noble Lord, Lord Mottistone, will not feel that I am betraying him by these views because,, in general, I agree with his approach to much of the Bill. However, on this occasion, I feel that he is mistaken.
§ Viscount Tenby
I rise to support the noble Lord, Lord Mottistone, and to share the sorrow of the noble Lord, Lord Mclntosh. We have been on the same side in these matters in trawling these deep waters over the past months, but I think that in one respect this is part of the same undesirable trend that has already been proposed by the earlier Clause 24 of blessed memory.
How proper is it to remove the sole right of a court to grant or withhold bail? Presumably, as we have heard already, in this instance the object is a saving to the public purse and, to use an extremely inelegant phrase, to "free up" police cell accommodation. The matter might be deemed to be relatively minor. I think that we; are all agreed on that. That is not something for which we would all go to the stake but the matter deserves the discussion that it is getting now. However, I do not believe it to be right that the police should be able to grant conditional bail in this way, although I am aware that the Royal Commission on Criminal Justice made a recommendation to that effect.
It is not as if we were living in the early years of the 18th century. We now have modern means of communication and most magistrates live within a reasonable distance of the courts they serve. I take my own Bench as an example. I appreciate that this does not cover the point which the noble Lord, Lord Mclntosh, made tellingly, but it does cover the question of Saturdays and Bank Holidays because we have a duty roster to cover those days. I am fairly confident that the same procedure is followed throughout the country.
On looking at the amendments, I cannot help recalling the Police and Magistrates' Courts Bill which this House discussed—with, can I say, advantage?— 191 earlier this year. Discernible in that Bill was a certain chipping away of the power of magistrates to order their own affairs locally. Now we have these clauses, which are not perhaps earth-shattering in themselves, but which are nevertheless important, if indicative of a certain attitude of mind towards the magistracy.
That aside, I do not believe it to be appropriate for the police to be able to grant conditional bail overnight. I would even have reservations about justices' clerics being used in that way, although I understand that the Justices' Clerks' Society would not be averse to that development. As has already been said almost ad nauseaum tonight, the granting of bail is a judicial function and should be left well alone.
§ Lord Campbell of Alloway
Perhaps I may say briefly that I wholly support the careful analysis of the noble Lord, Lord Mclntosh of Haringey. It was totally right and I share the conclusions that he drew.
§ Lord Rodger of Earlsferry
It is with pleasure that I can say that on this occasion I go along with everything that the noble Lord, Lord Mclntosh, said on this matter. The provisions should not be seen as in any sense an attack on magistrates. For many years police officers have had the power to grant bail. That is found in Section 38 of the Police and Criminal Evidence Act 1984. To the extent, therefore, that the power for the police to grant bail already exists, there has already been an inroad in the monopoly of the courts on this matter.
The problem which has arisen was identified by the noble Lord, Lord Mclntosh. It is that that power does not contain a power to impose a condition. The police may believe it correct that a condition should be imposed before bail is granted—a desirable condition, but perhaps not a very serious condition; for example, that the offender should not visit a certain pub or something like that, which is designed to prevent reoffending. However, in that situation the police cannot grant the conditional bail that they would wish and the person concerned has to be kept in custody overnight just to be brought before the court on the following day. The police will often have suggested the form of the condition that will then be put to the magistrates. As the noble Lord, Lord Mclntosh, said, that will often not be opposed by the Crown Prosecution Service and the magistrates will use it as the basis for granting the conditional bail. The result of that procedure is that an individual is unnecessarily kept in custody overnight just so that he can appear before the court on the following day whereas if the police had been given the power to impose the condition that person could have been released.
It is not a matter of saving pounds, shillings and pence; it is a matter of simple justice. If it is possible for somebody to be released and to go home (or wherever it may be) on that basis, it seems desirable for that to happen as soon as possible. That person should not be detained unnecessarily simply because of the absence of that power in the police officers. There is, of course, a restriction on the kind of condition which the police are entitled to impose. That seems correct. In all the 192 circumstances, it seems a useful power. It was recommend by the Royal Commission on Criminal Justice and I commend it to the Committee.
§ Lord Mottistone
It gives me great pleasure to be able to say to my noble and learned friend how grateful I am for having an explanation which I not only understand, but by which I am convinced. It was a great pleasure to me that I did not have to say that to him in respect of Clause 24. I see the point. However, I should like to leave a note of warning with the Home Office: watch it and do not chip away at the authority of the accepted courts of justice in this country.
Clause 26 agreed to.
Schedule 3 agreed to.
Clauses 27 to 29 agreed to.
§ Lord Harris of Greenwich moved Amendment No. 20A:
After Clause 29, insert the following new clause—
§ ("Entitlement to full bail hearing.
• The following paragraphs shall be substituted for paragraph 3 of Part HA of Schedule 1 to the Bail Act 1976—
§ The noble Lord said: This new clause provides that courts should hear a defendant's full argument for bail when he or she is in the process of being committed to the Crown Court for trial. The present day history of this area of the law dates from the Nottingham Justices case, which has been debated in this House on a number of occasions. That is Regina v. Nottingham Justices, ex parte Davis; a case heard in 1981. That laid down that when a defendant had been remanded in custody, the court should not hear arguments for the defence in support of a bail application at subsequent hearings unless there had been a substantial change in the circumstances since the last remand hearing.
§ The 1988 Criminal Justice Act modified that rule by providing that courts should hear a defendant's full argument for bail on his second appearance before the court, as well as on his first. Thereafter, they do not have to hear defence arguments for bail unless, once again, they believe that there has been a direct change in the circumstances.
§ However, I believe that committal to the Crown Court should always be regarded as a change of circumstances requiring a fresh look at the overall bail situation. When a defendant is on bail from a magistrates' court, he may often come back frequently, so the case for bail can always be looked at again. But when the defendant is committed to the Crown Court he may face many weeks or, indeed, many months in custody before trial with no requirement for regular court appearances to review the situation.
In the light of the serious implications of committal in custody, magistrates should always be required to review the case for bail fully before the defendant is committed to the Crown Court. If the defence wants to make representations, the magistrates should hear them
fully. The argument that I have put forward is largely consistent with the views expressed by the noble and learned Lord, Lord Donaldson of Lymington. When sitting as a Lord Justice of Appeal he delivered the judgment of the Divisional Court, first, in the Nottingham Justices case and then in a later case R v. Reading Crown Court, ex parte Malik. The noble and learned Lord, Lord Donaldson, said:
In passing, we would have thought that there had been a very clear change of circumstances, namely that the prosecution had by then completed its investigations and that the applicants had been committed for trial. Although there may be exceptional cases, as a general rule the moment of committal for trial must, in our judgement, be an occasion upon which an accused person is entitled to have his case for bail fully reviewed. In any particular case, the eligibility of the accused for bail may or may not have improved, but it is almost inevitable that there will have been a change in circumstances. For example, the court will be in a much better position to assess 'the nature and the seriousness of the offence", (Schedule 1 para 9(a) Bail Act 1976). In addition, the strength of the prosecution case can for the first time be fully assessed, both by the committing court and by the accused himself. This can be very material in considering the likelihood that the accused may fail to surrender to custody".
§ Those words are persuasive. I hope that the noble and learned Lord will agree that what the noble and learned Lord, Lord Donaldson, said on that occasion is consistent with the terms of the amendment, and I hope that it will be considered in that light. I beg to move.
§ 7 p.m.
§ Lord Rodger of Earlsferry
The amendment seeks to impose upon the court holding the committal a hearing the duty to hear any argument on bail even though it had been advanced previously. The position under the existing legislation is that after the first two hearings, subsequently the court need not hear arguments as to fact or law which had been heard previously.
There are two aspects to that. The first is that it merely relieves the court of an obligation to hear those arguments. It leaves it of course open to it to hear such arguments if it wishes. The other matter is that the only things that it does not need to hear are arguments as to fact or law which have been heard previously.
The noble Lord, Lord Harris, made a number of telling points in connection with the kind of matters which might be raised [...] moment of committal. He said, for example, that for the first time the full strength of the prosecution case might be available, and the nature and seriousness of the offence might be apparent for the first time. Those of course would be fresh matters which could be raised and would not merely be arguments on fact or law which had been heard previously. They would be good examples of the kind of fresh matters which could be put forward at that stage and would not be caught by the existing provisions of the Act.
The only point that is caught here is where all that is being put forward is something that has been put forward previously with nothing more besides. It is that which the court does not require to hear, but it may hear it. The kind of case that the noble Lord has put forward so tellingly is one that is already catered for under the existing legislation. Accordingly, there is no need for the amendment.
§ Lord Harris of Greenwich
I do not propose to continue this argument at this time of night. We shall be coming back to the Nottingham Justices decision. Nevertheless I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Harris of Greenwich moved Amendment No. 20B:
After Clause 29, insert the following new clause,
§ ("Consideration of mental health
- "(e) the state of the mental health of the defendant and the likely effect upon this of a remand in custody".").
§ The noble Lord said: This new clause requires a court, before remanding a defendant in custody, to consider the likely effect on his mental health. Section 4 of the Criminal Justice Act 1991 requires courts, before passing a custodial sentence on an offender who is or appears to be mentally disordered, to consider the likely effect of such a sentence on the offender's mental condition. At present there is no equivalent requirement in relation to bail conditions yet the impact of a remand in custody can be at least as damaging.
Thus, the amendment adds to the list of considerations in Schedule 1, paragraph 9 of the Bail Act 1976 to which the court must have regard when taking bail decisions. It includes the words:
The state of the mental health of the defendant and the likely effect upon this of a remand in custody".
§ It of course does not prevent the court from remanding such a person in custody if it considers that there is no alternative, but it seeks to ensure that the court should direct its mind to that issue.
Let me just give one illustration of the character of the problem at the moment in just one prison. It is a report by Judge Tumim, the Chief Inspector of Prisons, on Her Majesty's Prison Wakefield which was published only last week. It describes the situation and states:
'This became more disturbing when we were told that some fifty mentally ill inmates were located on the main wings. We observed a number of them walking aimlessly about in what appeared to be a semi-sedated condition. We were concerned that their safety was solely reliant on vigilant staff and the tolerance of other inmates. Efforts to get these inmates transferred to special hospitals were not meeting with much success".
§ Of course Wakefield is not a remand prison. It may have some remand prisoners, but that is not its primary function. Nevertheless that quotation from Judge Tumim indicates the seriousness of the situation confronting many governors in prisons in this country. As the noble Lord will be aware, a survey of sentenced prisoners carried out by Professor Gunn for the Home Office and published in October of the year before last estimated the prevalence of psychiatric disorders among sentenced prisoners as in the range of 40 per cent., of which substance dependency or abuse accounted for nearly 20 per cent. I have no figures for the proportion of remand prisoners. Many believe that the proportion of remand prisoners suffering from difficulties of this kind is greater than that of the sentenced population as a whole.
§ As regards mentally ill people who are alleged to have committed a criminal offence which requires them 195 to be kept in custody, the problems are clear. In many cases the risks of suicide and self-mutilation are increased. A research study carried out by Dr. Edna Dooley examined the record of prison suicides in England and Wales between 1972 and 1987. The study was published by the British Journal of Psychiatry. It was found that mental disorder was among the reasons for suicide in 22 per cent. of the cases that were reviewed. More than one-third of the prisoners who committed suicide had a previous history of psychiatric contact. About one-quarter had previous in-patient admissions and 23 per cent. had received some form of psychotropic medication in the month before suicide. According to a Parliamentary Answer given by the noble Earl, Lord Ferrers, in July 1993, of the 218 prisoners who took their own lives in the five years between 1988 and 1992, 102—that is 47 per cent.—were on remand. Of that latter group, 30 were mentally disordered.
§ It is said that only a small proportion had been charged with serious crimes of violence. Many had been charged with relatively minor offences. Thefts, public nuisance offences and criminal damage tended to predominate. A substantial proportion—40 per cent. in the case of London—had no proper home and had been living in unsettled accommodation or on the streets. The authors concluded that homelessness was an important factor in the decision of keeping the person charged in custody.
§ The amendment is hardly revolutionary. In terms of its effect, it merely requires the court to take these factors into consideration. Given the amount of anxiety about the number of mentally disordered people who are now in our prisons, it seems the least that we can do. I beg to move.
§ Lord Hylton
I support the amendment. The noble Lord, Lord Harris of Greenwich, has brought out clearly facts which are known to some Members of the Committee, in particular members of the all-party penal affairs groups. He has made a most powerful case for an increase in the quantity and distribution of secure wings of psychiatric hospitals. I hope that the noble and learned Lord the Lord Advocate will report that and emphasise it to his Cabinet colleagues.
§ Lord Campbell of Alloway
The Committee must be grateful to the noble Lord, Lord Harris of Greenwich, for drawing attention to the problem of the mental health of those in prison. I accept everything that he said. But, surely, this is a serious problem of much wider implication than the question of bail as such. With respect, I suggest to the noble Lord that it warrants much wider treatment; a more general treatment. To deal with the subject piecemeal will not do justice to the seriousness of the problem or to Judge Tumim's report.
§ 7.15 p.m.
§ Lord Rodger of Earlsferry
It is true to say that this is one part of a wider problem. Nonetheless, an important question has been raised by the noble Lord, Lord Harris. One must remember the context within which it is raised. It is that we are considering someone 196 who, for some reason, no longer has his right to bail —perhaps one of the criteria has not been met—and the court is considering his remand. It is proper to remember that paragraph 9 of Schedule 1 to the Bail Act 1976 provides that,the court shall have regard to such of the following considerations as appear to it to be relevant … as well as to any others which appear to be relevant".There is nothing in the present legislation which prevents the court taking into account any representa-tions which may be made to it about the kind of matter to which the noble Lord refers in his amendment.
The Government have supported the setting up of mental health assessment and diversion schemes, which can provide advice to the court on a person's mental condition based on mental history and an appropriate assessment made by a nurse or a psychiatrist. There are now about 100 such schemes around the country, 29 of which the Government have helped with funding. They hope to assist a total of 50 schemes in the present financial year, the cost of which will be about £1 million.
The schemes usually operate before the defendant first appears in court and therefore can help to prevent remands in custody while reports are obtained. I am sure the noble Lord realises that the question is one of balance. We are dealing with people who may re-offend and who therefore may constitute some kind of a danger. We must carry out a balancing exercise.
It must be accepted that imprisonment can impose a strain. It is also true that people with mental health conditions are found in such establishments. The noble Lord mentioned two examples. Neither related to a remand prison, but I do not deny that the kind of thing he mentioned might occur too. I am sure the noble Lord is aware that provision already exists in legislation for prisoners to be removed to hospital if they are in remand centres but it appears that they could be more appropriately dealt with in hospital because of anxieties about their mental health. In that connection, one of the duties and concerns of medical officers in such establishments is to look out for the kinds of problems that have been mentioned and to take the appropriate action. In connection with the courts, probation officers are also alert to such matters.
These issues are difficult but are already being addressed. The compulsory nature of what the noble Lord has suggested is not required. Where it is relevant it can be dealt with by magistrates under the existing law. Although the noble Lord has raised a very important matter, I hope that in the light of this explanation he will see fit to withdraw his amendment.
§ Lord Harris of Greenwich
I fear that what the noble and learned Lord has said has persuaded me not in the slightest degree. I fear that this has no relationship whatever to the situation faced by prison governors and station sergeants in this country, who often have to hold Home Office prisoners in police cells.
There are now hundreds, if not thousands, of people in that category. Of course, many of them will have to be remanded in custody because, in many cases, there are no alternative arrangements for them. The noble and 197 learned Lord mentioned spending £1 million on something. That is a fleabite compared with the sheer size of the problem.
The noble and learned Lord chided me in very gracious terms for not having given a more detailed illustration of a survey on remand prisoners. Having been chided, I shall now be glad to give him the information which I excluded from my earlier remarks in order to speak briefly.
As the noble and learned Lord will know from his briefing material, a study of mentally disordered remand prisoners was recently carried out for the Home Office by Adrian Brown, Susan Dale and Katie James of the Cambridge Institute of Criminology and by Graham Robinson of the Institute of Psychiatry. The results of that research were summarised by the authors in an article in Home Office Research Bulletin No. 32, published in 1992. The study records details of all men and women remanded in custody in Holloway, Brixton and Risley over a five to six-month period during 1989 who came to the attention of prison doctors for psychiatric reasons.
Earlier, I summarised what that research showed. In many of those cases, there is no great risk to the public because many of the people had been charged with relatively minor offences—theft, public nuisance offences and so on. Often, they were remanded in custody just because they were rather disturbed lost souls and nobody really knew what should be done with them. I do not believe that it is sensible to detain hundreds of people as remand prisoners basically for reasons of their psychiatric welfare. The facilities offered in prison for people in that situation are remarkably limited.
However, the hour is late. I can only guarantee to the noble and learned Lord the Lord Advocate that we shall return to this matter. Given the fact that the noble and learned Lord is aware that we shall return to it, I hope that he will look again at this matter.
I read a debate on a similar amendment in Standing Committee of the House of Commons and I was reduced to a state of near despair when I read the mutual abuse while all the serious problems were ignored. I am glad to say that this debate has been of a rather different character. However, the issues involved are extremely serious, as I am sure the noble and learned Lord recognises, and I can see no conceivable reason why courts should not be asked to take account of the mental condition of the people appearing before them. We shall return to this matter, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Baroness David moved Amendment No. 20C:
After Clause 29, insert the following new clause—
§ ("Prohibition of remand in custody.
A court shall not remand in custody a person who is not legally represented in that court unless—
- (a) he applied for legal aid and the application was refused on the ground that it did not appear his means were such that he required assistance; or
- (b) having been informed of his right to apply for legal aid and had the opportunity to do so, he refused or failed to apply").
§ The noble Baroness said: This is a new clause to prohibit the remanding in custody of any person who has not been offered legal representation. At present, the law contains a number of requirements for mandatory legal representation to be offered before offenders can be sentenced to custody. For example, it is mandatory for an offender under 21 to be offered legal representation before being given a custodial sentence. It is also mandatory to offer legal representation before a first custodial sentence is imposed on an offender of any age.
§ The arguments in favour of such a requirement are even more powerful in relation to imposing custody on people who have not yet been found guilty of an offence, particularly as the conditions in which they are held on remand in overcrowded, insanitary prisons are often worse than those for sentenced offenders.
§ Many defendants are immature, inarticulate, con-fused and daunted by the court setting. They are far from adequately equipped to represent themselves and to do justice to their case for bail. Legal representation can help to ensure that the proceedings are. understood by the defendant; that there is a clear presentation of any considerations relevant to the case for bail; that submissions by the prosecution can be scrutinised for inaccuracies and challenged if necessary; and that efforts can be made to pursue the availability of a hostel or other residential place, or take other steps to improve the defendant's bail prospects.
§ Anyone who is at risk of being deprived of his liberty and subjected to the appalling conditions in our local prisons and remand centres should have the right to legal representation. In most cases, this does already happen, and so the new clause is largely a statutory reflection of existing practice. We want a statutory guarantee of that position.
§ Where a defendant is under 17, the law already provides that he or she cannot be remanded in custody unless first offered legal representation. This provision is contained in Section 62 of the Criminal Justice Act 1991. There is no valid reason why a similar statutory provision should not be applied to defendants of all ages.
When a similar new clause was debated at the House of Commons Committee stage on 3rd March, the; Minister of State at the Home Office, David Maclean, said:
New clause 12 is unnecessary. The Legal Aid Act 1988 provides that a defendant must always be allowed representation for bail proceedings when he is before the court in pursuance of a remand in custody and is not—but wishes to be—legally represented".
§ However, the statutory provision cited by Mr. Maclean refers to a defendant who has already been remanded in custody and is appearing in court for the second time. This new clause would prevent a defendant from being remanded in custody on his or her first appearance without first being offered legal representation.
§ I thought that the aim of everybody was to try to keep people out of any sort of custody—prison, remand or whatever. I do hope that this might be a help in this direction and that the noble and learned Lord will consider this amendment favourably. I bee; to move.199
§ Lord Rodger of Earlsferry
The Government believe that this new clause is unnecessary. The Legal Aid Act 1988 provides that criminal legal aid is available to any person charged with a criminal offence where it is in the interests of justice that representation be granted and where his financial resources are such that he requires assistance. In the situation envisaged by the noble Baroness, the defendant would be in imminent danger of losing his liberty if he were remanded. In that situation, legal aid might well be granted.
The second stage is the one to which the noble Baroness referred and to which my honourable friend the Minister of State referred also in the other place; that is, where the defendant has already been remanded in custody and when he appears for a further remand decision, at that stage his eligibility for legal aid is subject only to his financial circumstances. But in either situation, should legal aid be refused or if the defendant has not applied for it, he may request assistance from the court duty solicitor. Such duty solicitors are provided under the Legal Advice and Assistance Regulations 1989 and are financed by the Legal Aid Board. I stress that access to the duty solicitor is not means tested. For those reasons, I believe that the amendment is not necessary and I ask the noble Baroness to withdraw it.
§ 7.30 p.m.
§ Baroness David
I am not at all sure that I am satisfied with that reply. However, I should like to read what the noble and learned Lord said and, again, perhaps take advice to decide whether or not I should return to the matter at the next stage of the Bill's proceedings. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 [Abolition of corroboration rules]: [Amendment No. 21 had been withdrawn from the Marshalled List.]
§ Baroness Mallalieu Moved Amendment No. 22:
Page 20, line 23, leave out ("is hereby abrogated") and insert ("shall only apply when the court determines that no evidence has been given which is capable of amounting to corroboration").
§ The noble Baroness said: In moving the above amendment, I shall with the leave of the Committee speak also to Amendment No. 23.
§ The amendments relate to the proposed changes in the Bill in relation to corroboration. If Members of the Committee will allow me, I propose to explain briefly what is the present position; what has gone wrong; what recommendations were made by the Law Commission and the Royal Commission; what the Bill seeks to do; and, finally, what the amendment seeks to achieve.
§ The usual rule in England and Wales is that the evidence of a single witness is sufficient to prove any issue. Juries and magistrates may convict on the evidence of one competent witness. However, there are some categories of evidence which are exceptions. In some cases, a statute requires that evidence be corroborated for certain offences. Clause 31 of the Bill, with which we shall deal shortly, addresses some but not all of those in the statutory category. In other cases at common law the judge must warn the jury that it is dangerous to convict on the uncorroborated evidence of 200 an accomplice—that is, someone who was or who may have been, a party to the alleged offence—or the uncorroborated evidence of a complainant in a sexual complaint.
§ The warning that is presently given in court takes the following forms. Where an accomplice gives evidence, the judge warns the jury that that witness may have a purpose of his own to serve in giving evidence against the accused and warns the jury in terms which are appropriate to the case of the possible dangers of relying on his evidence alone. In cases of sexual complaint, it has become the custom of the judge to tell the jury that experience has shown that in such cases people, whether they are men or women, boys or girls, do on occasions tell lies—sometimes for a reason and sometimes for no reason—and that it is dangerous to convict unless there is corroboration.
§ A judge both in cases involving an accomplice and in cases of sexual complaint must then go on to direct the jury that if, after hearing the warning he has given, they nevertheless conclude that the witness is speaking the truth they are entitled to convict even if there is no corroboration. In practice what happens during a jury trial is that, before counsel's speeches and the summing up but after all the evidence has been given on both sides, the judge discusses corroboration with both counsel in open court in the absence of the jury. If the judge decides that there is no evidence which is capable of amounting to corroboration and all are agreed, then the discussion is obviously a short one. Otherwise, that evidence which is capable of being regarded as corroboration has to be identified and distinguished from other evidence which jurors may mistakenly think is corroboration but which is not in law.
§ In law corroboration has a particular meaning. It is evidence from an independent source, someone other than the complainant or the accomplice, which does two things: it both supports the evidence that the crime has been committed and supports the evidence that the crime has been committed by the accused. With one short illustration, it is easy to show the difficulties that may arise. For example, in a rape case, fingertip bruising on the arms or the legs may support the complainant in her allegation that she has been raped, but it does not amount to corroboration because those fingertip bruises cannot link the defendant to the crime. But, of course, there are many pieces of evidence which do amount to corroboration—for example, blood from the com-plainant on the accused's clothing, admissions by the accused, DNA profiling, and so on. It is for the judge to identify at that stage those pieces of the evidence which are capable of amounting to corroboration and to direct the jury accordingly. However, it is for the jury to decide whether or not the evidence does corroborate the witness.
§ Difficulties have arisen because there have undoubt-edly been problems in the correct identification of corroborative evidence and the direction which the judge has then had to give in distinguishing corroborative evidence from evidence which is merely supportive. A considerable number of appeals have arisen as a result of an incorrect or an incomplete corroboration direction being given by a judge.201
In a report in 1991, the Law Commission recommended the abolition of the whole of the common law rules. That, effectively, is put into force in Clause 30 of the Bill. The commission also recommended that the statutory requirement under the Sexual Offences Act 1956 should go too, and that is incorporated in Clause 31 of the Bill. The Law Commission envisaged that that would leave the judge free to give whatever advice to the jury he or she considered appropriate in a particular case. The Royal Commission also came to the same conclusion but added in Chapter 8, paragraph 35:
It may still be necessary for the judge in these cases"—
the reference here is to common law cases—
to warn the jury of the danger of accepting evidence from a particular witness. We agree however with the Law Commission that the approach should be not that the same warning should be applied inflexibly to every case but that, if a warning is required, the judge should tailor it to the particular circumstances of the case".
§ What troubles me about the proposals in the Bill which simply remove the obligation to give the warning in relation to accomplices and sexual complaints—and it is something that I know troubles other criminal lawyers, especially those who practise in that field—is that the proposed changes in effect throw the baby out with the bath water. It perhaps only takes a moment to look at the position of an accomplice—that is, someone who has played or may have played a part in the actual offence which is alleged against the defendant—to see that his approach to his evidence may well be tainted.
§ I do not think that it is in any way insulting to complainants in sexual cases—indeed, it is a matter of plain common sense and perhaps obvious—to say that allegations of sexual complaint are in many ways ones which are easily made, which frequently involve no witnesses and which, at the end of the day, are sometimes very difficult to refute. Those who sit in criminal courts dealing with such offences are familiar with false allegations; that is, not merely ones where the evidence is insufficient, but false allegations which on many occasions are retracted during the course of the court proceedings. The fact that such things do occur was illustrated only recently by a public outcry about the behaviour of some youngsters on a train. It prompted a great deal of press coverage and comment, but police investigation subsequently showed that no criminal offence had been committed.
§ Both the Royal Commission and the Law Commission accepted the need for warnings still to be given in some cases. But the Bill as it stands makes no such provision. Where there is no evidence which is capable of amounting to corroboration—in other words, where the case stands solely on the evidence of the accomplice or the complainant—then the need to warn the jury, in our view, still continues. A jury ought to be reminded that there is a real danger. Moreover, at the very least, they ought to be reminded of the dangers in those cases. We say that it is so important that that should happen that it should remain obligatory in cases where there is no corroboration of the evidence of an accomplice or of a sexual complainant.
§ The proposal that is made in our amendment is quite simply this: where, at the stage when the judge discusses the question of corroboration with counsel, 202 there is evidence which is capable of amounting to corroboration—that is a matter for the judge to decide —the question of whether or not he feels it is an appropriate case for him to give a warning is a matter for him. But where there is no evidence which is capable of amounting to corroboration, what he should then do is to explain to the jury in terms, as he does at present, that it is dangerous to convict on that evidence alone. However, if, at the end of the day, they are satisfied the witness is telling the truth, they may still go on and convict. That, we say, is a warning which should continue to be given. That is the purpose of Amendment No.22.
§ The purpose of Amendment No.23—I will readily accept criticism if the drafting goes awry and does not meet what I intend to do—is largely consequential in that it is intended to leave the child in precisely the same position as any other accomplice or sexual complainant, but of course a child now no longer requires corroboration of his or her evidence simply by reason of his age. So far as the magistrates' court is concerned, magistrates are in the perhaps rather artifical position at present of having to direct themselves as to the danger when they are conducting a trial at first instance. That, we say, should continue. Amendment. No.23—I shall obviously deal with that in due course—is in effect consequential to the proposal we make in Amendment No.22. I beg to move.
§ Lord Campbell of Alloway
I beg leave to support this amendment. The excellent procedures have been fully and fairly explained with total accuracy by the noble Baroness, Lady Mallalieu, as has the purpose of our amendment. I am able to draw lines through large passages of my speaking notes. Both the noble Baroness, Lady Mallalieu, and I served as recorders. I have tried to work it out and I think that between us we have about 90 years' experience in the conduct of criminal cases. Inevitably, for some time past, her experience has been more intensive than mine. We both, in the light of our respective: experiences, for the reasons given, are wholly unable to accept Clause 30 as it stands without Amendment No.22 to Clause 30(1) and some form of amendment redrafted along the lines of Amendment No.23 to Clause 30(2).
My noble friend the Minister has always known that I would either table or support an amendment along those lines. I took up the point in the debate on the Royal Commission report. I said,There is one aspect of the proposals of my right honourable: friend, referred to by my noble friend Lord Ferrers, with which I am wholly unable to agree. The concept that in a rape case it is either 'offensive' or 'unjustified'—I use the words [of the 27-point programme]—for the judge to warn the jury of the danger of convicting only on the evidence of the complainant…".That was the suggestion of my noble friend Lord Ferrers. I continued,It is essential that the judge should be able to … give such a warning. It is immaterial whether the subject of the alleged rapt: is male or female; or indeed whether the judge is male or female" [Official Report, 26/10/93; col. 801–802.]The 27-point programme sought to suggest that it was inappropriate for a female judge to give such a warning. To my mind that is a nonsense.
203 The hope is that this Committee, at this late hour, will not divide. I hope that, without commitment, my noble friend the Minister may be able to take this back. In urging that, may I say in conclusion that my noble friend the Minister must have regard to the fact that as regards sexual offences (where there is only a direct conflict of evidence between the complainant and the accused, and no independent evidence to confirm the complaint) heavy penalties involving imprisonment for substantial periods and an indelible social stigma may well be involved on conviction—a conviction which may well be unsafe. It has been accepted by the profession for years that such a conviction has the possibility, or indeed the probability, or at least the propensity, of being unsafe unless the warning is given. This is an amendment which has no political complexion at all. The noble Baroness and I happened to meet in the Library and this reflects a meeting of our minds as professionals.
§ Lord Renton
I too support these amendments very strongly. No problem that I am ever aware of in my long experience has been created by the long-standing requirement that the warning should be given by the court to the jury in those cases where corroboration is required. That is to say, it is very unlikely indeed that guilty people have been acquitted because of the warning. But looking at the other side of the matter, if the warning is not given—if I may have the attention of my noble friend—there is a real danger that some innocent people will be convicted. It is notorious in rape cases, for example, that women have made false allegations of rape for wrong motives, and in those cases I would have thought it is essential that, if there is no corroboration, the jury should be told that they may convict but they should be warned that it is sometimes dangerous to convict without corroboration.
As to subsections (2) and (3) of Clause 30, which deals with the position of children, I suggest that corroboration is even more necessary in those cases, and therefore the warning even more necessary. I say that for various reasons within my experience. Children are easily persuaded by grown-ups to give evidence and to have their minds filled when otherwise the children might not have thought of giving evidence. Children are in any event sometimes very imaginative and unreliable witnesses. I really do hope that my noble friend Lord Ferrers will take note of what has been said. I remind the noble Baroness that I had the pleasure of her appearing before me when she did her first brief some years ago —not so many years ago as my noble friend Lord Campbell of Alloway was hinting. She has never looked back since and her experience is valuable. Of course my noble friend Lord Campbell of Alloway has a lot of experience.
I therefore hope that my noble friend Lord Ferrers will ask the Home Secretary to consider this matter before the Report Stage. As my noble friend knows, I am a keen supporter of the Bill. This is about the only clause which worries me.
I am always worried when my noble friend Lord Renton is worried. What worries me even more is when we discuss a subject on which the noble Baroness, Lady Mallalieu, and my noble friends Lord Campbell and Lord Renton are experts and I am a mere layman. I enter the fray with great trepidation.
My noble friend Lord Campbell of Alloway said that he and the noble Baroness, Lady Mallalieu, had 90 years' experience between them. I thought that a staggering revelation, if a somewhat ungallant one. I have obviously misjudged the age of my noble friend Lord Campbell considerably. I congratulate him on his fine appearance.
Fools rush in where angels fear to tread on a subject such as this. I therefore speak with great trepidation. As I understand the position, in this area the judge is obliged to say to the jury, "This is the law on corroboration". He will then explain it. He will go on to say, "Does anything which has been said in this case fall within the technical definition of corroboration? If you think it does", he says to the jury, "do you believe it?" If the answer to either of those questions is no, the judge then has to say, "I have to warn you that what you are left with is just the evidence of whoever it might be. That may be unreliable because that is what history has taught us. But if you are still sure that the defendant is guilty, then of course you can find him guilty".
I am grateful to the noble Baroness for explaining the position. However, Amendment No. 22 seeks to take one element of the current confusion out of this area by leaving it to the judge and not to the jury to decide whether any evidence has been given which is capable of amounting to corroboration.
§ Lord Campbell of Alloway
I am grateful to my noble friend for allowing me to intervene. To avoid misunderstanding, I should point out that that is not quite right. What happens is that the judge rules in the absence of the jury whether the evidence is capable of corroboration. That is a matter of law. If he rules that it is capable of corroboration he then leaves it to the jury. There is a world of difference.
I stand corrected by my noble friend. I shall mark what he says and digest it. The amendment leaves it to the judge, as I understand it, and not to the jury to decide whether there is any evidence which is capable of amounting to corroboration.
§ Baroness Mallalieu
That is the position at present in law. As I understand it, there is no proposal to change that. It is a matter for a judge to decide whether evidence is capable of amounting to corroboration and to draw the jury's attention to that evidence which he considers is capable of amounting to corroboration, and it is for the jury to decide whether it does in fact corroborate the witness. I do not propose to change that in any way by this amendment.
That is correct. But the noble Baroness knows that we do not have any great enthusiasm for leaving the corroboration rules in place as they are. If we did so, the amendment might represent one less burden for the jury. But the jury would still be told by the judge, even though the judge had said that the evidence was 205 potentially corroborating evidence, that they had to decide whether that potentially corroborative evidence was in fact corroborative.
§ Baroness Mallalieu
I think that the noble Earl has not understood my amendment. The amendment is intended to deal only with those cases where, in the absence of the jury, the judge concludes that there is no evidence capable of amounting to corroboration. If that is the position he will give them a warning in simple terms that there is no evidence which is capable of amounting to corroboration, and the evidence of the complainant or accomplice stands alone. He will then go on to tell them that if, nonetheless, with the warning in mind, they believe the witness, they can still convict.
The amendment is not intended to deal with those cases where the judge finds that there is evidence which is capable of amounting to corroboration. Whether he gives a warning in those cases is a matter for the judge's discretion—in other words, the position that the Government seek to apply to every situation. I have only taken those instances where the case rests solely on the one witness. I say that the warning should still be given as a matter of law in those cases.
I am most grateful to the noble Baroness for her explanation. This is a technical area in which the noble Baroness is a great expert and in which I lack that facility, as I do on many other occasions. I should like to take away and consider what the noble Baroness and my noble friend said, because I do not want to mislead the Committee or to give a wrong impression.
I say to my noble friend Lord Campbell of Alloway that Clause 30 as set out in the Bill is the precise wording of the draft Bill proposed by the Law Commission. It allows the judge to give a warning which is tailored to the particular circumstances of a case. The law already requires the judge to sum up, putting the defence case squarely before the jury. With the permission of the Committee and the noble Baroness, I should like to consider what has been said before the next stage.
§ Baroness Mallalieu
I am grateful to the noble Earl. I am sure that all those who have spoken will be glad to hear that. We very much hope that he will consider carefully whether he introduces an amendment to the present proposal. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 23 not moved.]
Clause 30 agreed to.
Clause 31 agreed to.
§ Lord Ackner moved Amendment No. 24:
After Clause 31, insert the following new clause:
§ (Imputations on character
§ The noble and learned Lord said: This is a very small, modest and, I hope, uncontentious amendment with which to end the day harmoniously, as I am sure the Committee will wish. The Government have said—and I accept, as many of us do—that the balance is tilted too 206 far in favour of the accused. The Government have also said, and I again agree, that technical rules that have no justification and which fly contrary to common sense should be done away with. My amendment arises in these circumstances.
Members of the Committee probably know that generally speaking an accused who gives evidence cannot be cross-examined as to his record. It cannot be put to him when he is charged with robbery, "You have done it 10 times before". It cannot be put to him that he has assaulted people in the past, as he is now charged. However, there are exceptions to that which go back to the Criminal Evidence Act 1898, the aged statute which first gave the accused the right to give evidence in his own defence. Because he was being given the right to give evidence in his own defence the protection was found in that statute. So far as is relevant to the amendment, the protection contains this exception in Section l(f):
A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he. has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is. of bad character, unless"—
and this, in paragraph (ii), is the relevant exception—
"the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for that prosecution".
In other words, if the way in which the defence is conducted is to bring out the bad character of one of the witnesses for the prosecution—to put to that person his previous record—and the accused himself is called to give evidence, then his record can be put to him on the simple basis that it is only right that the jury should see the reality of the situation, the potential unreliability of the evidence given by the prosecution because of his or her bad character, balanced against the potential unreliability of the evidence of the defence as, potentially, the result of his bad character. That has gone on as a matter of ordinary sound common sense and justice. The jury should not be given a false or unbalanced picture. That would be the case if the accused were allowed to give evidence with no cross-examination in regard to his character so that he appeared on the surface to be whiter than white, whereas the prosecution evidence had been attacked up hill and down dale.
§ I ask the Committee to extend that exemption—I refer to imputations on the character of the prosecutor or the witnesses for the prosecution—to include the character of the deceased victim of the alleged offence.
§ I give the Committee an example, The noble Lord, Lord Campbell of Alloway, has left the Chamber, but as a member of the western circuit he will remember the well known Portsmouth defence, as it was called. There is a fight and as a result a fatality. The accused, be he charged with murder, manslaughter or wounding with intent, says in his defence, "I was only acting in self defence. X, the deceased, is a well-known homosexual and he carried out a vicious and outrageous homosexual attack on me and I was merely defending myself. This was the sad result". That is the evidence that he gives. He has attacked the character of the deceased victim.207
§ As the law stands at present, the fact that he has a record of violence as long as both arms of your Lordships' arms, having been convicted time after time, cannot be given in evidence. The victim is sullied on the basis of the evidence given by the defendant and the jury are given the false, unbalanced picture that there is the innocent defendant defending himself from an attack in this quite outrageous situation.
§ Alternatively, getting away from the sexual picture, one takes the example simply of a vicious fight between two men with a resultant fatality. The defendant allows and causes his counsel to bring before the court evidence that the deceased had a long record of violence and that he, the defendant, states that he was attacked without any justification. But in truth he has an even longer record of violence than that of the deceased victim. Once again, a false and unbalanced picture is given to the jury.
§ That is a situation with which many members of the Bar now on the Bench, who have practised, have come face to face. Speaking for myself, I have felt somewhat uncomfortable that one's client has the benefit of this anomaly, this lacuna in the law. It has no justification except that in 1898 it was not thought of. But the law has been left as it stands. My simple amendment is to make sure that the same just position occurs whether the victim of the alleged offence is dead or alive. If he is alive, in goes the character of the accused when he gives evidence. If the accused has achieved a fatality, he should not be in the highly advantageous position of not having his character put in. I beg to move.
§ Baroness Mallalieu
I support the noble and learned Lord, Lord Ackner. In many murder cases where the defence is either one of provocation or self defence, an attack on the deceased is an integral part of the defence case. I, too, admit to having felt uncomfortable both in prosecuting and defending in circumstances where that part of the evidence is kept from the jury. The amendment seems to me not only necessary but desirable in the interests of fairness.
It would seem odd that an attack on the character of a prosecuting witness should remove a defendant's protection from the revelation of his previous convictions but that a similar attack on the character of a deceased victim should not. In other words, under the present law a defendant can blacken the name of a deceased but not the name of a living witness without laying himself open to a similar response from the prosecution. In so far as that discrepancy can be justified, I suppose it is that in seeking to undermine the credibility of a prosecution witness in this way the defendant should expect to lay himself open to similar tactics if he also acts as a witness and seeks to persuade the jury in his favour by his condemnation of the prosecution witness. I suppose it can be said that if the defendant is to be allowed to "play dirty", the witness should be allowed to do so too. As I understand it, that is the nub of the noble and learned Lord's amendment. What he says is that just because the victim is dead and cannot, for obvious reasons, be a 208 witness, it is not fair to allow the defendant to adopt tactics for which he would suffer if the victim were alive and giving evidence.
I am naturally hesitant about arguing on any matter with the noble and learned Lord, and especially a legal issue. But the law is about the way the credibility of witnesses is to be established and not about punishing the defendant for adopting unpleasant tactics to secure an acquittal. In practice, the provision is not generally seen in that way, as the tit-for-tat rule implies. However, that tit-for-tat rule brings its own disadvantages. In particular, it places a heavy burden on defence counsel in deciding whether to deploy what may be a perfectly legitimate defence when it involves disclosing information which amounts to an attack on the character of a prosecution witness. The Royal Commission on Criminal Justice made limited recommendations for reform in that area. In the Government's view those recommendations should not be introduced in isolation and on the basis of a fairly brief treatment in the commission's report.
What we have done, therefore, is to ask the Law Commission to undertake a review of the law governing evidence of previous misconduct. One of the central questions for the commission will be whether the tit-for-tat rule is still a sensible and just principle on which to found a critical part of the law. I suggest that we might be unwise to pre-empt the commission's conclusions.
There is a fundamental issue which ought to be considered but I doubt whether now is the right time to make a sigificant change to the 1988 Act, despite the noble and learned Lord's convincing arguments. I have no doubt that the Law Commission will look carefully, not only at the whole area, but also at the point which he made. I realise the distress which can be caused to the families of the deceased victims, and it is with some reluctance that I suggest to the noble and learned Lord that it would probably be better to wait until the Law Commission has drawn its conclusions rather than to embark upon the partial reform which he suggested.
§ Lord Harris of Greenwich
Having listened to the debate as a layman like the noble Earl, I was disappointed by his reply. I found the case put forward by the noble and learned Lord and the noble Baroness extremely persuasive. It seems to me an extraordinary proposition that the victim is dead and his character can be assaulted without any risk for the defendant. The noble Earl referred to a Royal Commission recommen-dation which, as I understood it, he thought had been dealt with too briefly. That is how I understood the thrust of his argument. He went on to say that the Law Commission had been asked to consider it. I am in favour of that, but there is now a massive queue of Law Commission Bills and the Government have not found time to introduce them in Parliament. As the noble Earl will recall, the matter has occupied the attention of the Select Committee on the procedure of this House. The Law Commission has already drawn public attention to its anxieties in the matter. The idea of passing the matter back again following the Royal Commission recom-mendation, with no certainty that parliamentary time 209 will be found for any recommendations that it may make, seems to me rather disturbing in the light of the strength of the arguments put forward this evening.
§ Lord Elton
I should like to ask the noble and learned Lord, Lord Ackner, a question. I am a total layman in this and I have no pretensions to being otherwise. I think that when we read Hansard, it will appear as though the noble and learned Lord made the assumption that in every case which he illustrated the accused was guilty and the deceased had not contributed to his decease. Perhaps I may ask whether there will be cases where the character of the deceased has relevance as evidence on the likely events which led to the perhaps unwitnessed decease, where the person had a character of tempestuous and unpredictable violence, and where it was therefore entirely likely that the defendant had acted in self-defence. Should we consider the point with both possibilities equally in mind? Has the noble and learned Lord done that?
§ Lord Ackner
In reply to that, I was making no assumptions with regard to the guilt of the defendant. I merely indicated that the one thing which should not occur is the jury being given a false and unrealistic picture. That false and unrealistic picture results from the blackened character of the victim and the inability to cross-examine the defendant, so that the jury has, on the one hand, a deceased with a violent character and, on the other hand, a defendant who is asked no questions about his character. Therefore, the inference which the jury draws is: "He is a splendid chap, whereas the deceased got what was coming to him". I make no assumption about guilt; I merely ask that the jury should not be deceived by the false picture. It is not a tit-for-tat situation that I seek to propound; it is avoiding artificial rules that create unreality.
§ Lord Moyne
The present legal position seems to be an invitation to anyone who finds himself in a brawl to kill his victim rather than leave him alive.
§ 8.15 p.m.
§ Lord Simon of Glaisdale
I am a great admirer of the Law Commission. The setting up of the commission seems to me to have been the supreme act of the chancellorship of Lord Gardiner. However, it certainly should not be an excuse to shuffle off obviously immediately desirable reforms. My noble and learned friend made an overwhelming case and he was supported by the noble Baroness who has so much experience and other noble Lords.
I suggest that it is most undesirable, when a case like this is made, for the Law Commission to be brought in on the grounds that it might consider other beneficial reforms. The case for this reform has been made out and justified beyond any argument and I hope that the noble Earl will accept the amendment.
§ Lord Ackner
Perhaps I may finally add this point. It is not something that has taken the noble Earl by surprise; I raised it six months ago in the debate on the loyal Address, which will be found in Hansard of 23rd November 1993 at col. 217. That is six months ago. This amendment is as simple as the addition of two or three 210 words at the end of a section, to expand that section to include an assault on the character of the deceased, the victim. With the deepest respect, to say: "The whole matter is now before the Law Commission" shows a strange inflexibility on the part of the Government. They have said and will urge in support of their justification for giving the right to comment on silence: "We must redress the balance between the prosecution and the defence", but that favours too much the situation of the defendant arising out of aged, ancient and unjustifiable laws.
There is an inconsistency in hiding behind a reference to a body which will not report for a long time:, after which there is unlikely to be time to deal with the matter. I earnestly ask the noble Earl to say that the matter will be considered again in the light of the support that has come from the Committee. Perhaps he could give us some crumb of hope on the subject
The noble and learned Lord is always deeply persuasive when he asks just for a crumb of hope. I should love to give him that crumb. He is perfectly right, he did give notice that he would raise this point as long ago as six months when he spoke in the debate in reply to the Queen's speech. I was grateful to him for that advance warning.
It is often said that the Government are accused of introducing legislation piecemeal, chipping away at one thing here and another there. The reason we felt it would be wrong to do this at the moment is because we asked the Law Commission to undertake a review of the law governing all the evidence of previous misconduct. We thought it would be an appropriate part of that. When one asks the Law Commission to do something and to give an overall view, the noble Lord, Lord Harris of Greenwich, says that we are trying to hide behind the commission. The noble and learned Lord, Lord Ackner, suggested that that was what we were doing. However, it was only because, if we were to change the law, we wanted to achieve as good a change as possible in the light of all the circumstances as opposed to one item. Of course I will give the noble and learned Lord his crumb of comfort; of course I will consider what he said and also what the noble Baroness and the noble and learned Lord, Lord Simon of Glaisdale, and other noble Lords said. These are important matters and I would not wish to be dismissive of them in the slightest degree. I shall certainly give consideration to them. I know that the noble and learned Lord would like me to say that I will give them consideration and then come back and say that I totally agree with him. But these matters are not as simple as that to reply to immediately. I shall, however, certainly consider them.
§ Lord Harris of Greenwich
As the noble Earl will realise when he refreshes his memory from Hansard, I did not say that the Government were hiding behind the Law Commission. I said that not only will there be the period of consideration of this issue by the Law Commission, but that there will then be the prolonged period between the publication of the Law Commission report and production of any legislation which it recommends. There is a massive queue of Law Commission Bills for which the Government have so far 211 found it impossible to provide parliamentary time. We are therefore talking about something very close to indefinite delay if the Government do not agree to move on this issue. I say that not in order to stimulate the noble Earl to reply but merely to emphasise the seriousness with which many of us who have listened to the debate regard the issues that have been raised.
I know that the noble Lord did not wish to stimulate me to reply, but of course he does—if only to apologise to him for suggesting that he said that we were hiding behind the Law Commission. I believe that it was the noble and learned Lord, Lord Ackner, who used such fascinating words. But the effect was the same. The noble Lord, Lord Harris, says that there will be a huge queue and if we do not do something that will happen for a long while. I am sorry if I have misrepresented him. I shall certainly consider the point.
§ Lord Ackner
The noble Earl will recall that only in the past two or three weeks the head of the Law Commission went public, protesting at the Government's failure to bring before Parliament the various reports that have long been collecting dust. To shrug off so simple an amendment on the basis, "We must see what the Law Commission says in a couple of years or so", is not a way to deal with a serious proposal. The noble Earl knows what enthusiasm can do with a crumb. I hope to demonstrate that when we return to the matter at Report stage. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Annaly
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.