HL Deb 07 July 2003 vol 651 cc98-124

8.31 p.m.

House again in Committee.

Clause 13 [Grant and conditions of bail]:

Lord Hodgson of Astley Abbotts moved Amendment No. 54: Page 8, line 40, leave out "for his own welfare

The noble Lord said: In moving this amendment. I shall speak also to Amendments Nos. 55, 56 arid 57. I am very grateful to the noble Baroness, Lady Walmsley, for her support for these amendments. The amendments concern Clause 13, the subject of which is grant and conditions of bail. The specific subject that we wish to probe in this group of amendments is the conditions to be imposed on bail for under 18 year-olds. As in our debate on Clause 12, our concern is to ensure that the child's welfare remains the predominant priority. Speaking in Committee in another place, Mr Grieve expressed a concern that children's welfare issues will no longer be the responsibility of the civil courts".".— [Official Report, Commons Standing Committee B, 7/1/03; co1.170.]

He said that intervention is taking place earlier when full representation is not readily available. We also have doubts over the appropriateness of a custody sergeant setting the conditions of hail, however well intentioned, without the presence of the relevant welfare authorities.

I draw the attention of noble Lords to Article 3(1) of the United Nations Convention on the Rights of the Child, which was quoted by the Joint Committee on Human Rights in its report on the UN Convention: In all actions concerning children …the best interests of the child shall be a primary consideration".

Without the guaranteed involvement of the appropriate family member or welfare authority, the granting of bail may cease to be primarily concerned with the welfare of the child and would instead be in the best interests of administrative convenience. We understand that the provision has been included in the Bill at the recommendation of the Law Commission, which observed that a defendant might be remanded in custody when release on bail with imposed conditions would have sufficed.

Although we approve of any reasonable proposal that minimises the chances of a child spending time in custody, this provision could place a heavy burden on the police, and, at the same time, present them with conflicting responsibilities that may be difficult to reconcile. I do not expect that these amendments are entirely properly drafted, but they concern an important issue and I look forward to hearing the Minister's response. I beg to move.

Baroness Walmsley

I rise to support Amendments Nos. 54 to 57, which are probing amendments. Although I am always pleased that the welfare of children is well to the fore in the minds of all who deal with them in the criminal justice system, I do not think that the child's welfare should ever be seen as justification for bail conditions or anything to do with custody. It is not for the justice system to decide on the child's welfare, but youth offending teams and the social services. Non-custodial responses should always be the norm for children and it should only be in exceptional circumstances that they are not granted bail. I find it difficult to see how it could ever be in their interests or for their welfare for them not to be granted bail.

As I said, I support the amendments as probing amendments. I shall be interested to hear how the Minister responds to the amendments and what reassurances he can give us.

Lord Hylton

I am puzzled by the amendments. Clause 13 appears to set out cases in which bail conditions may be imposed. Am I right to say that, in such circumstances, bail will be granted?

The Attorney-General (Lord Goldsmith)

In speaking to Amendments Nos. 54, 55, 56 and 57, I want also to speak to Amendment No. 58, which is grouped with them.

The noble Lord, Lord Hylton, is right in saying that Clause 13 is concerned with circumstances in which bail would be granted, but granted on conditions. The noble Lord, Lord Hodgson of Astley Abbotts, is right to say that Clause 13 follows a recommendation made by the Law Commission. I shall explain why, and I hope that in doing so I may provide the assurance that the noble Baroness, Lady Walmsley, sought.

As things stand, under the Bail Act 1976 a defendant under 17 can be remanded in custody on several grounds. One of those grounds—it may not arise frequently, but it is there—is if it would be for his or her own welfare or in his or her own interests to be remanded in custody. That power exists at the moment. We have no provision that would enable bail conditions to be imposed in the same circumstances.

The Law Commission pointed out—rightly, in the Government's view—that, in circumstances in which the court was of the view that it was necessary for the welfare of or in the interests of the young person to take a step, custody would, at the moment, be the only option. I accept that those may be unusual circumstances and that that is not the usual reason for refusing bail. If conditions had been imposed—a good example might be a condition to reside in a hostel—the court would be of the view that custody would not be necessary and it would be satisfactory to grant bail on that condition. Subsection (1) amends the Bail Act 1976 so as to provide that additional option, an option beneficial to the young person because it provides the possibility, which would not otherwise exist, of allowing bail in circumstances that otherwise could lead to a refusal.

It is not expected that the provision will be used to impose conditions on young defendants that are inappropriate or in inappropriate circumstances. As I explained, the objective is to fill a gap in the current provision, which might result, as the noble Lord, Lord Hodgson of Astley Abbotts, said, in someone being remanded in custody when he or she could have been released on bail if only appropriate conditions could have been imposed. That is the intention behind Clause 13(1). I hope that that explanation of the limited circumstances in which it arises will reassure Members of the Committee who spoke.

Amendment No. 58 is simply a drafting amendment, as the Committee will see. At the moment, the provision to which it refers talks about "Part", without identifying what it is part of. The amendment makes clear what that is. I hope that I have persuaded the noble Lord not to press the amendment.

Lord Dholakia

Before the noble and learned Lord sits down, perhaps I may ask him two questions in relation to Clause 13. The Bill does not propose to remove or amend paragraph 3 of Schedule 1 to the 1976 Act under which the defendant need not be granted bail if the court is satisfied that he should be kept in custody for his own protection or, if he is a child or young person, for his own welfare. If that is the only reason to refuse bail, some other secure setting should be provided. This is allowed under Clause 13(2)(c) and Clause 13(3)(b). Can the Minister confirm that this would apply in such cases?

My second point concerns pre-sentence or medical reports. Can the Minister further confirm whether the lack of timely preparation of such reports would not act adversely in terms of refusal of bail. Many times it is not the fault of the individual; sometimes the court and its officers do not prepare their reports in time. The individual ought not to suffer because of that.

Lord Goldsmith

As regards the first point raised by the noble Lord, Lord Dholakia, I agree. It would be unsatisfactory if it were necessary to detain a young person in custody when some other secure place could be found short of custody which would satisfy the requirement of providing the protection that the young person needs. The clause provides that by enabling a condition to be imposed—for example, the young person resides in a hostel which thereby provides a secure place and obviates the need for custody.

Turning to the second issue raised by the noble Lord, he will know that it often is required and is very much in the interests of the defendant—whether a young person or not—that particular reports are prepared before a sentencing decision is reached by the magistrates or by the court. It is very important that the court should know the background and circumstances and therefore have the full range of options available. In many cases there will be a statutory requirement not to proceed to a sentence or a particular form of sentence without. such a report being obtained.

In order that those who provide these reports can do their job properly, it will sometimes take time. It will always take some time. I have no doubt that the courts, and the probation service where it is responsible, will do all that they can not to prolong unnecessarily the time taken. During the period that such a report is being prepared, it may be necessary to provide a secure place for a young person. It is not their fault that that is happening, but it is a requirement that in their own and the public's interests a proper report should be obtained. I hope that deals with the questions posed.

Lord Hodgson of Astley Abbotts

I am grateful to the noble and learned Lord for his explanation of this group of amendments. He has assuaged our fears; I am not sure that our fears were not groundless in the first place. I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 55 to 57 not moved.]

Lord Goldsmith moved Amendment No. 58:

Page 9, line 7, leave out "that Part" and insert "Part 1 of Schedule 1 to the 1976 Act"

On Question, amendment agreed to.

Clause 13, as amended, agreed to.

Clause 14 [Offences committed on bail]:

Lord Goldsmith moved Amendment No. 59: Page 9. line 42, leave out "the defendant

The noble and learned Lord said: In moving Amendment No. 59, I shall speak also to Amendment No. 60, both standing in the name of my noble friend Lady Scotland of Asthal. These are both simply drafting amendments. The word "defendant" appears in what is grammatically the wrong place. The intention is to correct that grammatical error with these two amendments. I beg to move.

On Question, amendment agreed to.

Lord Goldsmith moved Amendment No. 60: Page 9, line 43, at beginning insert "the defendant

On Question, amendment agreed to.

On Question, Whether Clause 14, as amended, shall stand part of the Bill?

8.45 p.m.

Lord Thomas of Gresford

Articles 5, 6, 7, 8 and 11 of the European Convention on Human Rights have very important safeguards—the right to liberty, the presumption of innocence, respect for private and family life, and freedom of association. The proposal in Clause 14 is that bail should be refused to an adult defendant who is on bail in criminal proceedings on the date of the offence. The only exception is if the court is satisfied that there is no significant risk that he would commit an offence if released on bail which reverses existing hail presumptions. By opposing that Clause 14 stand part of the Bill we are concerned to inquire of the Government precisely what is the thinking behind this change? The presumption moves from a right to bail unless there is a significant risk of offending or absconding to entirely the other way round. We look forward to hearing what the Government have to say.

Lord Renton

It was the present Government who persuaded both Houses of Parliament to pledge the convention on human rights onto our statute book. I was in favour of that. But, as the noble Lord, Lord Thomas of Gresford, pointed out, we have to be very careful in ensuring that our own law does not in any way conflict with the convention, even in minor matters. The Government should consider carefully the effects of Clause 14 upon the Act embodying the convention on human rights. For that reason I am glad that the noble Lord has moved that we should rewrite Clause 14.

Lord Borrie

I am most interested in the proposal of the noble Lord, Lord Thomas of Gresford. My reading of Clause 14 is that this is a well-justified tightening of the rules on bail both to ensure compliance with the European Convention on Human Rights and to prevent abuse and to retain the discretion of the court, which is the most important matter.

Paragraph 2A of Part 1 of Schedule 1 to the Bail Act 1976, according to the Law Commission in a report a couple of years ago, could be seen as contradictory to the European Convention on Human Rights. The Law Commission said the Act needed amending to make plain that just because the defendant was on bail at the time of the alleged offence, that was not an independent ground for refusal of bail. It is meant to be—I hope that Clause 14 does this—only one consideration that the offence was committed on bail. This is surely a very valid consideration that the court should take account of in determining whether there is a real risk of the defendant offending yet again while on bail. This surely is one of the key legitimate grounds for refusing bail, along with the other ones with which we are familiar such as the risk of absconding and the risk of interfering with witnesses.

Lord Goldsmith

Bail is a very important part of our criminal justice system, but it is right also to recognise that there are sadly many who are provided with bail who yet go on to commit other offences, as there are many who are provided with bail who yet go on not to surrender to custody. Home Office research has shown that as many as one in four of those who are granted bail go on to be convicted of a further offence committed when they are on bail. For offences such as vehicle crime and shoplifting, that research indicated that the figure is as many as over 40 per cent who commit further crimes while on bail.

That is clearly a source of legitimate concern for the public—that someone who has committed an offence is granted bail, yet commits a further offence during that period. Equally—and I make the point at this stage although it is more relevant to Clause 15 than Clause 14—those who are granted bail yet do not turn up to their custody create a great problem for the criminal justice system. It is obviously a waste of time and resources if someone fails to surrender to custody when the court is ready to deal with the case. But more than that, it is a source of frustration and distress to victims and witnesses who turn up for the case to be dealt with, only to find that a defendant who has been given this opportunity—that is, given bail—has failed to turn up himself. I am sure that noble Lords will agree that it is entirely justifiable that, as the jurisprudence of the European Convention on Human Rights makes plain, a reason for not granting bail would be the existence of some risk that a person would commit an offence while on bail.

My noble friend Lord Borrie is absolutely right in saying that the present position under the Bail Act 1976 is one that the Law Commission has suggested takes the position too far. Paragraph 2A of Part 1 of Schedule 1 to that Act purports to make the fact that a defendant was on bail at the time of the alleged offence an independent ground for the refusal of bail—full stop, as it were. The Government are drawing back from that by proposing that we should consider the true justification for the refusal of bail in such a case which is not that the alleged offence was committed by a defendant who was already on bail, but the risk of a further offence being committed derives from that fact.

Most people would regard the fact that an offence was committed when a defendant was on bail as very significant in assessing the risk that further offences could be committed, as my noble friend suggested. Subsection (1) therefore repeals the existing provision in paragraph 2A and replaces it with a requirement for the court to refuse bail to an adult defendant who is on bail in criminal proceedings at the date of the offence, unless it is satisfied that there is no significant risk that he would so fail if released. That is obviously a very important final piece to the clause. As my noble friend Lord Borrie said, it leaves it for the court to have the ability to say that notwithstanding that an offence has been committed while on bail, it is appropriate to grant bail because there is no significant risk that the person would commit a further offence.

I suggest that that position is entirely consistent with our ECHR obligations. I respectfully agree with the noble Lord, Lord Renton, that it is critical in such areas that we should comply with our obligations under the European Convention on Human Rights. The Government's view is that the clause does that, because it remains open to the court to say that notwithstanding that there has been an offence, there is no significant risk of the person committing a further offence while on bail.

While dealing with those matters, it is right to draw attention to the rather different provision that applies in subsection (2), which would apply to defendants under 18, to whom the reverse presumption would not apply. Different language is used, and the court is to give particular weight to the fact that the offence was committed on bail in deciding whether or not the defendant would be likely to reoffend if released on bail.

I hope that the Committee agrees that in putting these amendments forward we have had full regard to our European convention obligations. Compared with the 1976 Act we are extending the ability of the court to be able to grant bail in appropriate cases and have ultimately struck a balance which is acceptable. I hope that against that background the Committee will agree that Clause 14 should stand part of the Bill.

Baroness Carnegy of Lour

Will the noble and learned Lord explain to me as a lay person exactly what the difference is between the way a person is treated in subsection (1) as opposed to subsection (2)? I do not understand what the difference is when the person is under 18. More weight is given to a certain fact in subsection (2), but is weight not given to it in subsection (1) as well?

Lord Goldsmith

Yes, of course, but subsection (1) goes further because the court is required to refuse bail unless it is satisfied—and the test is there set out— that there is no significant risk of [the person] committing an offence". In reaching that conclusion the court will have regard to all the circumstances. Undoubtedly a stronger test would apply to the adult than to the person under 18. I hope the Committee agrees that that is the right approach.

The Deputy Chairman of Committees (Baroness Fookes)

The Question is that Clause 14 stand part of the Bill. As many as are of that opinion will say "Content", the contrary "Not Content". The Contents have it.

Clause 14, as amended, agreed to.

The Deputy Chairman of Committees

I call Clause 15.

Lord Thomas of Gresford

I intended to reply briefly to the comments of the noble and learned Lord the Attorney-General.

The Deputy Chairman of Committees

The clause has already been passed. I paused slightly before I put the Question.

Lord Thomas of Gresford

With the greatest respect I did not hear a pause, if one can hear a pause. However, I shall confine my remarks to the next clause to which they are equally applicable.

Clause 15 [Absconding by persons released on bail]:

Lord Thomas of Gresford moved Amendment No. 61: Page 10, line 12, leave out from "custody" to end of line 13.

The noble Lord said: This is my opportunity to speak which I shall take.

The noble and learned Lord the Attorney-General indicated that the Government were very concerned to comply with the convention and to ensure that convention rights are upheld. In relation to Clauses 14 and 15 he will know that the Joint Committee on Human Rights pointed out that it was unable to accept his view as expressed previously. No doubt that view will be expressed again in a moment. Provisions which deny a person hail unless he or she can convince a court that there is no significant risk of their reoffending—I refer to Clause 14—or failing to surrender for trial seem to us to constitute a disproportionate interference of the right to liberty under Article 5.1 of the European convention. A court would be prevented from considering the other convention rights of the defendant, of members of his or her family and of other defendants

The amendment is designed to leave out the words, but this does not require the court, if so satisfied, to grant bail (disregarding other considerations)".

That means that the court may come to the conclusion that there is no significant risk that, if released on bail, the defendant would fail to surrender to custody. But even though it comes to that conclusion, it is not required to grant bail. That seems to me to be entirely wrong. If a court is to determine the circumstances set out in the proposed amendment to the 1976 Act—to the effect that the defendant is not to be granted bail in the circumstances so specified—and if it comes to the conclusion that there is no significant risk, why does it not follow the natural consequence of that finding and allow bail? On what other basis is bail to be refused? That is the problem—no significant risk that he would fail to surrender to custody. It seems to me that with that conclusion the proper decision for the court must be to grant bail. I should welcome enlightenment from the noble and learned Lord as to why the Government take a different view. I beg to move.

9 p.m.

Lord Hodgson of Astley Abbotts

Would the noble and learned Lord like me to speak to Amendment No. 64 now, or would he prefer to move his amendments first? Which would be most convenient?

Lord Goldsmith

The amendment is grouped with this one. It would probably be convenient, therefore, if the noble Lord were to speak to it now.

Lord Hodgson of Astley Abbotts

Amendment No. 64 relates to Clause 15, and to persons released on bail. I hope that the wording is largely self-explanatory.

The amendment relates to a worry brought to our attention by the Magistrates' Association that no consideration or allowance with regard to bail has been made for those with mental disorders. While proposed sub-paragraph (3) in Clause 15(1) makes provision for bail to be permitted where, it appears to the court that the defendant had reasonable cause for his failure to surrender to custody", the defendant would still be denied bail if, he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time". Proposed sub-paragraph (4), referred to by the noble Lord, Lord Thomas, further limits the chances of bail being granted by stating that a failure to give the defendant a copy of the record of the decision to grant him bail shall not constitute a valid excuse either. The Magistrates' Association believes that that opens up the possibility of a defendant with a mental disorder being denied bail for failing to comply with these conditions when it is entirely possible that he may not have understood the full implications of them.

It cannot be in the interests of anyone—the police, the Prison Service, the judicial service, or particularly the person in question—further to increase the strain on the system by refusing bail to people who, while confused, have no malicious intentions in failing to comply with bail conditions.

We should have been more comfortable had the proposed new sub-paragraph (4) in Clause 15(1)— a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure"— been eliminated, because the Auld Report, which the Government have quoted and used extensively, states on page 430n that, bail notices should be couched in plain English, printed and given to the defendant as a formal court order when the bail decision is made, so that he understands exactly what is required of him and appreciates the seriousness of the grant of bail and of any attached conditions". That would have reduced our concerns on this point. In the absence of that, Amendment No. 64 is designed to provide a failsafe which will enable the court to grant bail at its discretion to a defendant suffering from a mental disorder within the meaning of Section 2 of the Mental Health Act 1983.

Lord Renton

I support what my noble has said in relation to Amendment No. 64. The point that must be borne in mind about mental disorders is that they can vary enormously. Some will be so severe that the defendant concerned has absolutely no control over his actions. Others may be only slightly involved in an error of judgment. But the discretion of the court is necessary in whatever circumstances arise here, and therefore I believe that the amendment proposed by my noble friend is a very useful one.

Lord Goldsmith

I shall speak to Amendments Nos, 61 and 64. I note that the noble Lord, Lord Thomas, did not speak to Amendment No. 62, from which I infer that he does not intend to move it. However, I do not want to leave it unanswered if that was in fact an oversight.

Lord Thomas of Gresford

I should have spoken to Amendment No. 62. I note that the noble Lord, Lord Hodgson, made much the same point, that a failure to give a copy of the record shall, not constitute a reasonable cause for a person's failure to surrender to custody". We find that unnecessary and restrictive.

Lord Goldsmith

I am happy to deal with that now, or the matter might return later. It is better at least to explain the position as I understand it. I shall therefore speak to Amendments Nos. 61, 62, and 64—and also to government Amendments Nos. 63, 65 and 66. They deal with different topics.

Amendment No. 61, moved by the noble Lord, Lord Thomas, would remove the concluding words of the new paragraph 6(1), but this does not require the court, if so satisfied to grant bail (disregarding other considerations)". The noble Lord asked why would it be appropriate to deny bail if there was no significant risk that if released on bail a person would fail to surrender to custody. The answer is that there might be another good reason for not granting bail—for example, if there was a risk that that person would interfere with witnesses or the course of justice. There are a number of circumstances under which bail can be refused. All that this is doing is to make clear that if there are reasons for refusing bail independent of the question of absconding, then the court will retain the power to refuse bail, which it would have under the Bail Act 1976 in any event.

It could not be right to say that although one condition has been dealt with, even though there is another good reason for refusing bail, that that should be excluded automatically. So we could not accept the deletion of the words. Of course, the words are an amendment to an existing Act, which contains a number of provisions about the presumptions, subject to these amendments, in which bail would be provided, and so the other provisions of the Act should apply.

Amendment No. 62 seeks to remove paragraph 6(4), which, as the noble Lord, Lord Thomas, said, provides that, a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody". That is no more than to repeat the provision that already exists in the Bail Act, in Section 6(4). There is no change by making this provision. In any event, the Government believe that this will rightly avoid technical arguments that a defendant could not have been expected to know his bail date because the court had failed to give him the required copy. The defendant might have been in court and heard very well the magistrates say, and perhaps his lawyer afterwards, "This is the date that you are supposed to attend". There would be no doubt that he had known the date—and to say later, "I didn't turn up because I haven't had a copy of the bail record", would be unacceptable. There might be circumstances which would lead the court to take the view that he had reasonable cause not to attend. But it could not just be the fact that there was no copy of the record.

I turn to Amendment No. 64, moved by the noble Lord, Lord Hodgson. As the noble Lord, Lord Renton, said, there will be degrees of disorder from which a person falling within the definition referred to by the noble Lord, Lord Hodgson, could suffer. I entirely take the point that it would be unjust if someone who was not responsible for his actions fell to be remanded in custody because of the risk that he would not surrender. A person who is mentally disordered ought to have been identified as such, and diverted away from the court, before this stage in the proceedings. If that has not happened, but it is nevertheless clear that the person is disordered, then I suggest that the court would be entitled to find, and would be likely to find, that that person had "reasonable cause" for his failure to surrender. So the presumption against bail would not apply. That remains in this case for the court to consider. Did the person have reasonable cause for failure to surrender? That is the reason for resisting the amendment, although recognising and understanding the thinking which lay behind it.

I turn to the three government amendments. The purpose of Amendment No. 63 is to correct a disparity in the treatment of defendants aged 18 and below. Under the Bill as it stands, a defendant under 18 who has absconded not only is not subject to the presumption created by Clause 15(1); he would moreover benefit from a presumption in favour of bail owing to the removal of paragraph 6 of Schedule 1 to the Bail Act. That result would not be sensible and the amendment therefore requires the court in the case of defendants under 18 to give particular weight to the fact that they have failed to surrender to bail in assessing the risk of future absconding.

Amendment No. 66 simplifies and improves subsection (2) because it provides for a straightforward three-month limitation period to run from the defendant's surrender to custody, arrest or court appearance in respect of the offence, whichever is first. Amendment No. 65 is simply a drafting amendment and I hope that I need say no more about it.

Lord Renton

Before my noble friend Lord Hodgson replies, perhaps I may with great humility reply to what the noble and learned Lord the Attorney General said about Amendment No. 64. At first he seemed to accept the proposition that the circumstances arising from mental disorder would vary enormously, but then he gave the impression that we should not leave the matter to the discretion of the court. I would have thought that if justice were to be done, there must be variation. The court must have a discretion to apply whatever is required in the particular circumstances of the particular mental disorder.

Lord Hodgson of Astley Abbotts

Will the noble and learned Lord explain further why the Government did not follow the clear recommendation of the Auld report as to how bail notice should be couched, printed and handed out? He touched on it, but I thought it a glancing blow only. We are trying to achieve a balance throughout the Bill, particularly in this clause. The issue of bail, as he rightly reminded us, is important and one about which there is great public concern. The Auld report gave a clear recommendation, but the noble and learned Lord did not quite give it the drive through the covers that it might justify.

Lord Thomas of Gresford

Before the noble and learned Lord replies to that question, and after he has received the important information just communicated to him by the noble Lord, Lord Evans, perhaps I may ask him to deal with my point about the findings of the Joint Committee on Human Rights. He did not refer to them in his reply. The Joint Committee mentioned the case of Le Tellier v France where the European Court of Human Rights held that pre-trial detention must be limited to a reasonable period of time and the court must examine all the circumstances for or against a public interest in detention, justifying any detention with due regard to the principle of the presumption of innocence.

The court identified five factors which may justify detention pending trial: the risk of absconding, the risk of interfering with the course of justice, the prevention of crime, the preservation of public order and the need to protect the defendant. But the court made it clear that the individual's particular circumstances and personal characteristics must be taken into account and the reasons given for refusing bail must not be abstract or stereotyped, which is the point that the noble Lord, Lord Renton, was making a moment ago.

The problem about Clauses 14 and 15 is that they impose a straitjacket on the court that it must be confined by in considering the particular case in front of it. It is required not to give consideration to the particular circumstances and personal characteristics of the individual. It follows that Clauses 14 and 15 do have an abstract or stereotyped response to either the question of re-offending or the possibility of the defendant absconding. The Joint Committee on Human Rights has some weight in your Lordships' deliberations and if it feels that these provisions deny a person bail and they do constitute a disproportionate interference with Article 5(1) then we need to have a justification from the Government for why these provisions are put forward. Otherwise a court considering the matter at some future date may well say that these clauses are incompatible. The noble and learned Lord did not deal with that in his response and I ask him to do so now.

9.15 p.m.

Lord Goldsmith

Three quite separate points had been put before I sat down. I will try and deal with them in turn.

The noble Lord, Lord Renton, questioned me further on the issue of the mentally disordered defendant. What I wanted to do, and hope I did do, was to draw attention to the fact that in the provisions that are set out in Clause 15, the presumption that is set out in Paragraph 6(1) is subject to Paragraph 6(3), which would be the new Section 6(3) of the Bail Act, 1976. It provides that where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody he does not fall within the paragraph unless it appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time. The point that I was anxious to make is that when somebody is suffering from a condition where it is not right to say that he is responsible for not turning up, where he cannot have been expected to do so having regard to the condition, then the court would be entitled to say—I would expect it to do so—that he has a reasonable cause for not attending and therefore it is inappropriate for us to apply this presumption. It may then look at the case more generally and may, or may not, decide that in all the circumstances custody is appropriate. I see that the noble Lord, Lord Renton, wishes to speak and I give way.

Lord Renton

My Lords, I thank the noble and learned Lord for giving way. Is he is saying that the reasonable cause to which he refers could be mental disorder?

Lord Goldsmith

I do not want to be too telegraphed about this matter. It may be that the reason that the person has not attended is due to a mental disorder and that the magistrates or the court consider that in those circumstances it is appropriate to say that the person had reasonable cause not to attend or could not have been expected to attend. That is why I venture to suggest that the noble Lord had helpfully reminded the Committee that the degree of conditions could vary from very extreme to not so extreme. Of course, the court would have to look at the circumstances.

Secondly, I was chided by the noble Lord, Lord Hodgson, for not having dealt with the matter of the terms of a bail notice. The Government expect and wish that bail notices should be provided. It is important that that takes place. The sole point with which I was dealing—it is the sole point with which Amendment No. 62 is concerned—is whether the mere fact that such a notice has not been served should in itself constitute a reasonable cause for not attending. I suggest that based on existing law and based on common sense, the fact that such a document has not been served cannot be a reasonable cause. That does not mean that there may not be reasonable cause based upon a number of circumstances which to the court appear appropriate. That was my reason for responding to the amendment in a way that the noble Lord thought was a glancing blow. I thought I had driven it to the covers and perhaps rather further.

Lord Dholakia

I believe that the Minister is dealing with an example of mentally ill offenders. Many noble Lords have served as magistrates and will be aware that many people who appear before them are inadequate in various ways. Many times bail is granted with conditions. Surely the easiest way is for there to be an obligation on the court to ensure that bail notices are clearly specified—not only the attendance but also the conditions—rather than putting the onus on an individual having to justify why he or she did not appear with the excuse mainly that he or she just did not understand the conditions.

Lord Goldsmith

I repeat, as the 1976 Act states and as appears to the Government to be right, that failure to give a copy of the record of the decision to grant bail shall not constitute a reasonable cause for failure to attend. I suggest that as a matter of common sense that does not in any way detract from the desirability that notices should be provided and that they should be clear. However, as a matter of common sense, that cannot be a reasonable cause not to attend when one has been told in court, one has heard what has been said and others have reminded one and told one at the time. One cannot simply say, "Well, for this technical reason I did not get a copy of the document, therefore, I am entitled not to turn up; I am entitled to put the public, the court, the witnesses and the victims to inconvenience". In our view that will not wash.

The third point is the compatibility of the provision with ECHR requirements. The noble Lord, Lord Thomas of Gresford, referred to the Human Rights Committee, a committee for which I have great respect, having sat on it before taking my present position. Ultimately, it is a matter of what the jurisprudence of the Strasbourg court requires, and that does not consist of just one case but a number of cases.

As the noble Lord, Lord Thomas, rightly accepted, one of the clear circumstances in which it is appropriate, according to European jurisprudence, not to grant bail is in circumstances that concern the risk that someone would fail to surrender to custody if granted bail. This provision deals with precisely that. Generally speaking, it cannot be acceptable for someone to be released on bail, which is the basis for saying, "You will come back, and the witnesses and the victims will attend so that the court can deal with the case", and for him or her to fail to attend. Not surprisingly the European Court, while rightly saying that there must be reasonable times imposed and matters of that kind, states that that is a perfectly legitimate circumstance in which bail can be refused.

Ultimately, courts themselves, as public authorities, are also bound, as the noble Lord would be the first to remind me, by the requirements of the Human Rights Act and the European convention. The Government's view—and as it happens my view—is that the provision is compatible with our obligations under the European convention.

Lord Thomas of Gresford

Referring to the first amendment to which I am speaking, which would amend subsection (1), I now understand the meaning of lines 12 and 13, from "but" to "considerations", the part that we seek to exclude. I happen to think that it is very badly worded. I did not understand it before, and one or two alterations would make it clear what the noble and learned Lord had in mind. May I suggest a form of words which he can read in Hansard tomorrow? My suggestion is, "but this does not require the court, even if so satisfied, to disregard other considerations for not granting bail". I think that is what he said was the meaning of that particular phrase. I do not pretend to have any particular expertise, but if I did not understand it first time around, it is possible that other people might not, so I respectfully suggest that the wording be clarified.

On the general issue—the human rights issue—we are back in the situation which permeates the Criminal Justice Bill and other legislation that is brought forward by the Government in this field. We are back to trying to impose, as I said earlier, the straitjacket upon the adjudicating body, whether it be magistrates or the judge in the Crown Court. All the matters to which I have referred from the European case, and cases, and all the matters to which the noble and learned Lord has referred, are already taken into account by magistrates in the exercise of their discretion in granting bail. Why it cannot be left to the adjudicating body to decide whether it is appropriate to grant bail in these circumstances—having regard to the individual in front of them and the particular circumstances, whether it be a mental or physical disability or failure to receive the court order—I do not know.

The notice from the court—the copy of the record of the decision to grant bail—is not quite as simple as the noble and learned Lord thinks. In very many cases, a large number of conditions of bail are imposed. There may be six or seven or eight including reporting, where a person is going to live, whom he may have contact with, and so on. It is extremely easy for a person charged with an offence to overlook one or other of those bail conditions. It is therefore particularly appropriate that he should have, in writing, quite specifically, what the conditions of his bail are.

I do not propose to press the amendment at this stage, but it is a serious issue. I would ask the noble and learned Lord to look at the wording—possibly my off-the-cuff amendment of it would make what he is aiming at rather clear—and to consider the whole position generally, particularly in the light of the conclusions of the Joint Committee on Human Rights.

Lord Renton

Before the amendment is withdrawn, I ask the Government to bear in mind what the noble Lord, Lord Thomas of Gresford, has said about the general effect of the clause and its general effect as amended by the Government. This is a part of the law in which, in the interests of justice, the terms should be absolutely clear. It affects people's freedom, it affects the protection of the public by depriving people of bail or putting them into custody when there is a risk to the public. It is not part of our duty in either House of Parliament to have legislation affecting these matters put in such long and complicated terms. It would be wise if, between now and Report, the Government considered the complete redrafting of this clause.

Lord Goldsmith

I rise because I think the noble Lord, Lord Renton, put that as a question to me. I beg to differ with him and the noble Lord. Lord Thomas, as to the alleged lack of clarity in the clause, which fits in any event within an existing Act of Parliament that carries with it particular presumptions, as I have said, subject to these clauses. But of course I always listen to the suggestions of the noble Lord, Lord Renton, and I give him that assurance.

Lord Thomas of Gresford

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 62 not moved.]

9.30 p.m.

Lord Goldsmith moved Amendment No. 63: Page 10, line 28, at end insert— (1A) After paragraph 9AA of that Part (inserted by section 14(2)) there is inserted— 9AB (1) Subject to sub-paragraph (2) below, this paragraph applies if—

  1. (a) the defendant is under the age of 18, and
  2. (b) it appears to the court that, having been released on bail in or in connection with the proceedings for the offence, he failed to surrender to custody.
  3. (2) Where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, this paragraph does not apply unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.
  4. (3) In deciding for the purposes of paragraph 2(1) of this Part of this Schedule whether it is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would fail to surrender to custody, the court shall give particular weight to—
    1. (a) where the defendant did not have reasonable cause for his failure to surrender to custody, the fact that he failed to surrender to custody, or
    2. (b) where he did have reasonable cause for his failure to surrender to custody, the fact that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.
  5. (4) For the purposes of this paragraph, a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody.""

On Question, amendment agreed to.

[Amendment No. 64 not moved.]

Lord Goldsmith moved Amendments Nos. 65 and 66: Page 10, line 36, leave out "subsection (12) or" and insert "either or both of subsections (12) and Page 10, leave out lines 41 to 47 and insert— (13) This subsection applies if an information is laid for the relevant offence no later than 3 months from the time of the occurrence of the first of the events mentioned in subsection (14) below to occur after the commission of the relevant offence.

On Question, amendments agreed to.

Clause 15, as amended, agreed to.

Clause 16 [Appeal to Crown Court]:

Lord Goldsmith moved Amendment No. 67: Page 11, leave out line 28.

The noble and learned Lord said: In moving the amendment I shall speak also to Amendment No. 68 and touch on Amendment No. 68A, to which the noble Lord, Lord Hodgson, will speak.

Clause 16 creates a new right of appeal to the Crown Court against the imposition by magistrates of certain conditions of bail. That was recommended by Lord Justice Auld in his review, and it complements the removal by Clause 17—to which we shall come shortly—of the existing High Court power to entertain such appeals.

As the Bill stands, the conditions that may be challenged in that way are requirements relating to residence away from a certain area, provision of a surety, or giving a security, curfew, or electronic monitoring. It was argued in another place that a condition to reside at a particular address was potentially as restrictive as one to reside away from a particular area.

The Government agreed to consider that argument, and we have been persuaded by it. So the amendments tabled by the Government—if the Committee agrees to them—give a right of appeal against the imposition of a condition that the defendant should reside at a particular place, with the exception of a bail hostel.

We also said that we would consider a requirement not to contact a particular person, which is the subject of the amendment in the name of the noble Lord, Lord Hodgson. I wait to hear what he says about it, but I have indicated to him already that the Government are not resistant to his proposal, with certain adjustments. I beg to move.

Lord Hodgson of Astley Abbotts

As the noble and learned Lord the Attorney General has kindly made clear, we have tabled Amendment No. 68A in this group. With the Committee's permission, I shall move Amendment No. 68A in a modified form by omitting the last two words of the amendment; that is, the words, "or person", so that the words to be inserted by the amendment are: ,or (e) that the person concerned makes no contact with another person".

As the noble and learned Lord made clear, this is an addition to Clause 16(3), listing appealable conditions. This is a further appealable condition. The noble and learned Lord referred to the discussion in another place. The Minister replied that he did not believe that the conditions were, so great a restriction on a defendant's liberty as to require a right of appeal", but he conceded that he, would like to look at the proposal and to consider further the point made by the hon. Gentleman [Mr. Grieve] in respect of paragraph (h)".—[Official Report, Commons Standing Committee B, 7/1/03; cols. 176–8.] Paragraph (h) is now paragraph (e) in Amendment No. 68A and makes reference to not contacting a particular person. We are very grateful to the Minister for taking that consideration on board. That condition of bail stands out because there are circumstances where a defendant's liberty might be curtailed to an unreasonable extent by its imposition. Freedom of association should be protected by the ability to appeal against restrictions placed on it.

Another consideration is that such a condition curtails the freedom not only of the defendant but of the person whom the defendant is prevented from seeing. Accordingly, the condition potentially has doubly far-reaching effects on the liberty of the defendant and that of the other people specified in the condition. The bail condition as laid out in Amendment No. 68A is quite frequently opposed; therefore, we are grateful for the Government's sympathetic response to the amendment.

Lord Thomas of Gresford

We support Amendments Nos. 68 and 68A. My only qualification is that I do not see why it is necessary to specify the conditions of bail that may be the subject of an appeal. I would have thought that the right of appeal should apply to any condition of bail. Although, at this hour, I am not in a position to recall any specific additional condition of appeal, there are frequently conditions other than those listed. I look forward to hearing from the Minister why the provision is limited in that way.

Lord Goldsmith

I am content to accept Amendment No. 68A as modified, given the support that it has received and the remarks of the noble Lord, Lord Hodgson. I understand that it is acceptable to modify the amendment in that form.

I wish to respond to one remark made by the noble Lord, Lord Thomas. There is no amendment before the Committee to add to the clause any other condition as being subject to appeal. There is no amendment to remove the conditions that exist. Given the lateness of the hour, I hope that the noble Lord will forgive me for saying that it is not therefore appropriate for me to comment on what I would have said to other amendments had they been moved. I beg to move Amendment No. 67.

On Question, amendment agreed to.

Lord Goldsmith moved Amendment No. 68: Page 11, line 29, at beginning insert— (aa) that the person concerned resides at a particular place other than a bail hostel,

On Question, amendment agreed to.

Lord Hodgson of Astley Abbotts moved Amendment No. 68A:

Page 11, line 32, at end insert ", or

On Question, amendment agreed to.

Clause 16, as amended, agreed to.

Clause 17 [Appeals to High Court]:

The Deputy Chairman of Committees (Lord Geddes)

Before calling Amendment No. 69, I must advise the Committee that if the amendment is agreed to I will not be able to call Amendment No. 70 due to pre-emption.

Lord Thomas of Gresford moved Amendment No. 69:

Page 12, line 12, leave out subsections (2) to (5).

The noble Lord said: This amendment probes the Government to tell us why it is necessary to abolish the inherent power of the High Court. The High Court has a supervisory jurisdiction. It governs everything that happens in lower courts. I do not understand why that inherent power, which can be invoked in several circumstances, should have been abolished in subsections (2) to (5). I await an explanation. I beg to move.

Lord Renton

I support what the noble Lord, Lord Thomas of Gresford, has said. However, I wish to make a very minor drafting point. The word "inherent" is quite unnecessary. It is used twice—in the first line of subsection (2) and the first line of subsection (3). It would be sufficient simply to refer to "the power of the High Court".

Lord Goldsmith

The noble Lord, Lord Thomas of Gresford, asked why we should remove this right. The answer, in the words of another, is that it is a hit of a muddle and a wasteful duplication of process. That other was Lord Justice Auld. I will read what he said in his review, because I hope that noble Lords will see that it gives a complete answer to the point that was raised and shows why the provision is sensible. He said: We have a permanently manned Crown Court all over the country which can deal with the matter by way of appeal, and those detained in custody no longer have to await the next visit on circuit of the High Court Judge or apply to a judge in Chambers in London to seek release. It is a separate and parallel, not appellate, jurisdiction. In my view, there is no longer any need for a High Court Judge to consider afresh the grant of bail after refusal by a magistrates' court or the Crown Court. If the magistrates' court and a Crown Court Judge, the latter on an original application or appeal by way of re-hearing, acting within the proper bounds of their discretion, have refused bail, it is an anomaly that another judge, albeit a High Court Judge, be entitled to exercise a further discretion in the matter", The provision is required because there is an unnecessary and wasteful duplication of process. The rights of the defendant, which are, of course, very important, are entirely adequately safeguarded by the fact that the magistrates will have considered the matter and a judge in the Crown Court on appeal or by way of original application will have considered whether bail should be granted. It is for those reasons that the Committee in another place accepted after deliberations that the clause was welcome.

Government Amendment No. 70, which is grouped with Amendment No. 69, is merely consequential on an earlier change to Clauses 81 and 82, which removed specific provision for the variation of bail conditions.

Lord Renton

Could the noble and learned Lord deal with my very minor drafting point? Is the word "inherent", which is used twice, necessary at all?

Lord Goldsmith

I apologise to the noble Lord, Lord Renton, for not having picked up on that point. I do not regard the word as inappropriate. It is quite common to refer to some of the powers of the court, especially the High Court, as being inherent, which indicates that they do not derive from any particular statutory provision, but that they are inherent—I cannot find a better word. I hope that the noble Lord agrees that that puts the matter clearly beyond doubt and that it is not inappropriate.

Lord Mayhew of Twysden

Is there not an inherent weakness in what is being put forward by the noble and learned Lord? If one chooses to go to the Crown Court in virtue of its inherent jurisdiction—one goes to the Crown Court first by way of the original application—there is to be no appeal from that decision if the clause is agreed to. Is that altogether satisfactory?

Lord Goldsmith

The process that would take place—I was going to say in the vast majority of cases, because I can think of only one exception to the rule and I am not sure how many others there are—would be that the first decision about bail in any case would be for the magistrates' court. The matter would then go to the Crown Court. The application could be renewed at the Crown Court or, in a sense, appealed to the Crown Court. In those cases there would be two opportunities for the position as to bail to be considered. The exceptional case that I was considering—and I am not sure whether I am technically right about this—would be if a voluntary bail had been preferred, which might mean bypassing the magistrates altogether. I am not confident about that being the only exception or necessarily right in itself.

Generally speaking—this was the view of Lord Justice Auld, a very experienced Court of Appeal judge—it is unnecessary to have an additional jurisdiction alongside that of the Crown Court judge. That is why the Government take this approach.

9.45 p.m.

Lord Thomas of Gresford

It is not so much an "alongside" jurisdiction as a long stop jurisdiction. If the Committee will forgive me for being anecdotal, I will say that I remember a case in which a defendant surrendered to his bail on the first day of his trial. By a mischance, his surety had not attended at court for his bail to be renewed. Bail would have been renewed in the ordinary course of events, but, because the surety did not arrive, the defendant was taken off to Brixton.

Then, the surety arrived, but it was 4.15 and the judge had gone home, as judges tend to do at the Old Bailey. I withdraw that comment; it is not fair. They work very hard. Mr Geoffrey Robertson and I—he was my junior at the time—attended before the duty High Court judge. We dragged him from his dinner and obtained an order. At about 10 o'clock at night, I think, we went down to Brixton and retrieved our client, so that he was not required to spend the night in custody. He would not normally have been in custody.

That was not something that happened every day, but it was useful to have the long stop provision. I see no reason why that inherent power should not continue.

Lord Goldsmith

I understand from that anecdote that it happened a long time ago—Mr Geoffrey Robertson was the noble Lord's junior—and that the case involved an Old Bailey judge, among the most experienced of our criminal judges, and that the application resulted in the defendant avoiding one night in custody. In a sense, the story makes the point. If an extremely experienced criminal judge, such as an Old Bailey judge, has, in his discretion and knowing all the circumstances of the case, reached the view that it is appropriate to withdraw hail or withdraw it in those circumstances, why should that decision be overridden by another judge who happens to be a High Court judge but—dare I say it—might have been from my former chambers and had commercial or civil experience but not the criminal experience of an Old Bailey judge? I stand unrepentant, notwithstanding the anecdote. This is an appropriate clause.

Lord Mayhew of Twysden

I am sorry to prolong the matter. Even somebody from the noble and learned Lord's old chambers could see the justice of the application made by the noble Lord, Lord Thomas of Gresford, in the circumstances that he cited. In that anecdote, there is no criticism of the Old Bailey judge: he had gone home. He had to withdraw bail, when the surety did not turn up, and he was no longer there when the surety did turn up.

That is all that we are looking for. It is not enough to say, "It was a long time ago, and it is a very rare circumstance. Anyway, what's a night?". In each of the circumstances, the anecdote warrants keeping the clause.

Lord Borrie

I am not sure that it does. Have we forgotten that the surety failed to turn up? I know that that was not the fault of the accused, who might have had to spend a night in gaol as a result, hut it is a fact. What if he had not turned up for hours? That would have been too bad, and the accused would have had to stay one night.

Does that justify there being the long stop that the noble Lord, Lord Thomas of Gresford, suggests? To my mind, it has been out of date since 1970, when the Courts Act created the Crown Court and all the rest of it. In 2003, we are now just about catching up with the situation. High Court judges should no longer be expected to be the back stop or long stop, as the noble Lord put it. I listened closely to the anecdote and I did not really feel that that hard-luck case justified the retention of the High Court judge's role in life in the circumstances mentioned.

Lord Thomas of Gresford

If that was the only circumstance in which the High Court judge was required to be a long stop, I would agree with the noble Lord, Lord Borrie. But that is not the case. One simply cannot envisage or categorise the circumstances which will arise in all sorts of cases. In answer to the noble and learned Lord, of course the Old Bailey judge was not making a decision to refuse bail. As the noble and learned Lord, Lord Mayhew, pointed out, he was unable to grant bail in the absence of the surety, who just turned up late. I use it as an anecdote and not as a principle; in those circumstances, the long stop was useful. It does not require anything more than that the High Court judge should be capable of taking a decision of that kind where the liberty of the subject is involved.

After all, the High Court judge is there entrusted with the responsibility—as are all judges—of maintaining the liberty of the person. Although I apply to withdraw the amendment, I hope that the noble and learned Lord will consider what has been said and question with his officials whether it is necessary to do this. I am not persuaded by the suggestion made by the noble Lord, Lord Borrie, that it has taken us 33 years to catch up. In fact, I think that it is 31 years since the Crown Courts were brought into being. I am not persuaded that that is the proper approach. I am much more concerned with what happens to individuals. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goldsmith moved Amendment No. 70: Page 12, line 28, leave out from "bail" to end of line 29.

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Appeal by prosecution]:

Lord Hodgson of Astley Abbotts moved Amendment No. 70A: Page 13, line 8, after "imprisonment" insert "for two years or more

The noble Lord said: Clause 18 concerns appeals by prosecution against bail. The Auld report made recommendations on revising the system for bail. The clause seems to have been drafted by the Government to follow some of the recommendations of Lord Justice Auld and would enable the prosecution to appeal against the grant of bail in respect of all and any offences punishable by a custodial sentence of any length. As I understand it, it used to be permissible with regard to offences carrying a custodial sentence of five years or more only.

We accept that those who persistently offend while on bail need to be reined back. Surely, the Bill as drafted risks clogging up the courts with appeals of all variations against potentially minor cases. Misdemeanours undoubtedly are committed on bail. The noble and learned Lord the Attorney-General already has referred to some of these statistics in earlier amendments. Are they widespread enough to warrant the possibility of a higher prison population figure?

Lord Justice Auld explained in chapter 10, paragraph 90, page 433 of the report, that some of those who offend while on bail are guilty of committing what are called in America "quality of life crimes" which although not necessarily serious cause an unbalancing effect on the "community's sense of security". While one should not underestimate the effect of such antisocial behaviour, do such actions require the very strong and draconian line that the Government are now proposing to take? There must be some doubt whether the right balance is now being struck.

If the Auld report was referring to more serious offences, that would be a different matter. Since there are no statistics, we cannot really tell. There has been a helpful briefing from the London Criminal Courts Solicitors Association which points out that if the Government want to restrict bail further, they need to provide clearer evidence that the public are put at risk by the operation of the law as it stands. It has also stated that it is not aware of any supporting evidence or statistics. Nevertheless, one statistic that is thrown around regularly and with good reason is the size of the prison population in England and Wales. That now stands at around 73,500 and has risen by around six per cent just this year.

Leaving aside the civil liberty issue, will not the Government's proposals in this clause create a further burden on the already fast-growing prison figures and threaten to overwhelm a prison service already operating at arguably more than full stretch? Moreover, is there not the practical danger for those who are remanded, having been refused bail, that far from encouraging rehabilitation, it will serve to reinforce any tendency towards criminal behaviour?

We believe that a rethink is needed. Our amendment allowing prosecutions to appeal against bail where the custodial sentence in prospect is two years or more offers a more sensible and balanced way forward. I beg to move.

Lord Thomas of Gresford

In supporting this amendment, I should like to approach it from a different angle. This Bill and many criminal justice Bills support an industry of satellite litigation. As a member of the Bar one should not really object to that because it means more work. I note that the noble Baroness, Lady Kennedy of The Shaws, agrees with me. But litigation is piled on litigation. The right of appeal for the prosecution means another hearing, the use of court time and the payment of counsel for prosecution and defence. Some limitation should be put upon it. This modest amendment of two years or more is practical as well as right in principle. We on these Benches support this amendment.

Lord Goldsmith

This is not about satellite litigation. This is not about providing work for lawyers. It is about circumstances in which, in the view of the prosecution, bail has wrongly been granted to somebody. The public may need protecting against that person during the period until the offence comes to be tried. I noted the point made by the noble Lord, Lord Hodgson, about statistics. The statistics that I referred to before seem to me to speak volumes, Nearly one in four of defendants granted bail goes on to commit an offence of which they are convicted during the period of bail. There are a substantial number— nearly one in eight—who fail to surrender to their bail with all the consequences. This means a waste of time and resources and frustration for victims and witnesses when they find the case does not take place. These are serious issues which affect the quality of life of the British people.

This amendment proposes a different limitation on the offences where the right to appeal by the prosecution may arise. We do not find this a sensible limitation. We do not see that it is sensible to limit cases to those where imprisonment is capable of being two years. We follow the line that Lord Justice Auld took that such an appeal should arise in all cases of offences which are imprisonable, having regard to the fact, as he said, that there may be offences which are not of the most serious in the calendar of criminal offences but may cause considerable nuisance and detriment to quality of life, especially if repeated. For someone to have committed what may not have been the most serious offence, and for it then to be repeated precisely when that person is on bail. can cause a strong belief in the public that the law is simply being made a fool of.

I do not accept that the proposed limitation is sensible. However, I hope that noble Lords will be reassured to hear that the right for the prosecution to appeal against a grant of bail is not used in a wide or cavalier fashion. On the contrary, the internal guidance provided within the Crown Prosecution Service recognises that the right to take a case to appeal should be used judiciously and responsibly. The most recent guidance produced internally uses the expression—which is why I used it before—that we must look principally to see whether the public need protecting from the defendant. If that test is applied, I hope that it will be agreed that, whether the offence has a maximum of two or five years, it is proper to look to see whether or not this is a case in which bail has been wrongly granted.

Of course, the fact that the prosecution appeals against a grant of bail does not for a moment mean that the appeal will succeed. The outcome is entirely within the discretion and judgment of the court to which it goes. If the court takes the view that it was entirely right and proper to have granted bail, it will say so and will no doubt go on to make some comment about the desirability of the appeal having been brought in the first place.

I hope that my remarks on the Crown Prosecution Service approach will give some comfort to the noble Lord. It is unnecessary to limit the provision in the arbitrary way proposed in the amendment.

Lord Hodgson of Astley Abbotts

I am grateful to the noble and learned Lord for his response arid to the noble Lord, Lord Thomas of Gresford, for his support. It is always helpful, as a non-lawyer, to have a lawyer giving me some practical examples.

I listened carefully to the Minister's remarks, and I accept the statistics that he repeated. However, when Ministers reach for phrases such as "internal guidance" and say that we do not have to worry about this draconian legislation because of such guidance, I am less impressed. We are really talking about how the measure will work. It is quite a re-balancing of the system, and we were trying to find a balance at another point on the fulcrum. To return to the cricket analogy, if the Minister's earlier comments were a drive through the covers for four, this was a dab down to third man for a single.

We should like to read what he said, discuss it with some of the expert bodies that have briefed us on this point, and consider whether we want to return to the matter at a later stage. In the meantime—

Lord Thomas of Gresford

Before the noble Lord withdraws the amendment, as he appears about to do, and in answer to the noble and learned Lord, I remind him that paragraphs 175 and 176 of the Auld report's recommendations stated: Magistrates and judges in all courts should take more time to consider matters of bail … Listing practices should reflect the necessity to devote due time to bail applications and allow the flexibility required for all parties to gather sufficient information for the court to make an appropriate decision".

The Auld report itself says that we should take more time over bail applications and, no doubt, more time over appeals on bail applications.

Lord Goldsmith

I was going to make an offer to the noble Lord, Lord Hodgson, but I shall comment on what the noble Lord, Lord Thomas, has just said. Nothing that I have said for a moment suggests that we do not want each court that deals with a bail application to consider it fully and properly and to take the time that is necessary to do so. I do not understand why it is thought that the comments made sensibly, if I may respectfully say so, by Lord Justice Auld undermine what I have said about the prosecution right of appeal.

My offer to the noble Lord, Lord Hodgson, is the following. Among the expert bodies that we would like to consult I should be happy to meet with him and others to talk about the way that the Crown Prosecution Service, which is the department for which I am ministerially accountable, exercises the powers that we are discussing. That may help the noble Lord reach a view about the way that this power—I do not accept that it is a draconian power—of appeal (it is no more than that) will be exercised.

Lord Hodgson of Astley Abbotts

That is indeed a generous offer which I may very well take up. I thank the noble and learned Lord very much for his comments. As I was about to do when I was hit from two directions, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.