Mr Dominic Grieve (Beaconsfield, Conservative)

I beg to move amendment No. 26, in

clause 15, page 10, line 37, after 'imprisonment', insert

'for two years or more'.

First, I associate myself with the Minister's response to the information given to us by the hon. Member for Nottingham, North. We all send our best wishes to the officer and his family.

The clause amends the Bail (Amendment) Act 1993. Under the clause, it will be possible for the prosecution to appeal not only in the case of an offence that is punishable by imprisonment for five years or more but in the case of any imprisonable offence.

When I saw the words ''Bail (Amendment) Act 1993'' in the Bill, it brought back memories—I drafted that legislation, having been asked for help by the hon. Member who was introducing it as a private Member's Bill. I had never drafted a piece of legislation before, and might never do again. Since it appeared on the statute book, the Court of Appeal has criticised its drafting on a number of occasions and it has been tinkered around with several times. That drafting was done by my fireside with a whisky in one hand and a pen in the other, quite late at night, when I came back from my barrister's practice, but at least it has stood the test of time and the Government seek to improve it—or do they?

When the 1993 Act was drafted, I felt that it would be pushing it a bit to say that it should be possible for the prosecution to appeal what it considered to be a mistaken decision to grant bail in respect of any imprisonable offence. That is why that was confined to offences attracting a sentence of imprisonment of five

years or more. This probing amendment prompts us to consider, as a topic for discussion, whether we are going too far in including any offence punishable by imprisonment. While I accept that discretion will lie with the prosecution, we could end up with a situation in which grants of bail in offences in which the likely sentence of imprisonment is going to be minute or non-existent could be appealed. That is why I have tabled an amendment that introduces a two-year limit. It is important for the Committee to consider the matter, and I shall be interested to hear the Minister's response.

We do not wish to see people out on the streets who have been wrongly granted bail by magistrates courts; that is why the 1993 Act seemed to be such an important tool. Prior to that, there was no possibility of any appeal by the prosecution against what the police might have felt was a mistaken decision to grant bail. However, it was always thought that it would be used in respect of serious offences, or of a person on trial for a serious offence. What is now proposed is a catch-all that could apply to anyone and would cover a vast number of offences. Do we need to go that far? There is a merit in having certainty in legal proceedings. Apart from the danger of clogging up the courts, if legislation results in people constantly thinking that decisions by magistrates to grant bail might be reversed a few weeks later, is it necessary? That is the key test in our deliberations on the Bill, and I should like the Minister to explain why the current wording is necessary.

Mr Hilary Benn (Leeds Central, Labour)

I congratulate the hon. Gentleman on enlightening the Committee as to his role in the drafting of the original legislation. In the case of this clause—I cannot promise to do it in other cases—where he led, the Government are proposing to follow. I recognise that his is a probing amendment and he asks a legitimate question. The nature of the amendment accepts the case for some change to the five-year limit. We are relying on the consideration that Sir Robin Auld gave to the matter in his report.

Sir Robin referred to the sorts of offences, not especially serious in themselves, that, if repeated, can affect the quality of life of large numbers of people, and give rise to concern about the inability of the criminal justice system to prevent the commission of offences on bail. Minor criminal damage is an example. Offences of that kind are currently excluded, and would also be excluded by the amendment.

Taking the argument that the hon. Gentleman advanced in favour of clarity, I tell him that the clause makes it clear that in relation to all offences that might attract a sentence of imprisonment, there would be a prosecution right of appeal. Despite that, however, it would not be usual for the prosecution to appeal against a grant of bail for a defendant charged with a minor offence. However, there will occasionally be circumstances in which it is appropriate to challenge a decision to grant bail—even for those offences punishable by less than two years' imprisonment, as detailed by the hon. Gentleman's amendment. It is

sensible and right for the prosecution to have a right of appeal against a grant of bail by magistrates for all cases that would be punishable by imprisonment. The Crown Prosecution Service's internal guidance, which gives advice on the operation of the right of appeal as currently constituted under legislation, would need to be revised to take account of the change proposed under the clause.

Mr Dominic Grieve (Beaconsfield, Conservative)

I am grateful to the Minister for his exposé of the Government's reasoning, which seems totally coherent. In view of that and of the CPS guidelines in particular—which would, I hope, avoid ping-ponging, with the courts being cluttered up with applications on relatively minor cases—I shall withdraw the amendment.

I say in passing that the provisions raise the prospect of further increasing the prison population. Given that the Government are now sending out mixed signals as to whether burglars should be imprisoned for first-time offences, a situation whereby those who have committed minor offences of criminal damage are kept in custody might lead the public to think that some of our priorities are slightly skewed. However, I accept that some instances of relatively minor criminal damage, especially if persistently committed by those out on bail, are exceptionally antisocial, and are good grounds for withdrawing bail. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

I am supportive of the principle behind the clause. However, I have a question about the time scale. The clause refers to a two-part process: the granting of bail and the prosecution's appeal. If the prosecution appealed, would bail not be granted until the appeal was heard—that is, would the appeal act as a stay? The question raises an important issue, because if so, a court that had decided that there should be conditions of bail would have its decision overridden without the High Court's having a review to change that. The issue touches on an important principle, in terms of liberty and who eventually has the decision. The argument does not apply in the other direction, in the case of the person who is inside. On the traditional defence appeal for bail in cases in which the lower court has refused it, the old position properly stands until it is reversed. Therefore, there is no liberty question.

Mr Dominic Grieve (Beaconsfield, Conservative)

I hope that the Minister can reassure the hon. Gentleman, unless the Act has been tinkered with since I drafted it. The appeal acts as a stay, though there are tight time limits on the bringing of the appeal.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

That is the substantive question that I wanted to clarify, which is important, not least for the reason alluded to by the hon. Gentleman, with his previous—and present—life in mind, that the prisons should not be filled with extra people during the process of appeal. I would like the Minister to confirm what the time limits are, so that people who read our

proceedings will know. What statistics from the Lord Chancellor's Department are available to the Minister on what the time scale is in practice? It is important that the process be instantaneous.

Lastly, if the procedure is to be changed, so that it goes from the lower courts to the Crown court, as opposed to the High Court, a view that I generally support, there is no reason why, on every working day—by which I mean every working day of the year, every non-bank or public holiday and not on Saturdays or Sundays, rather than every legally termed working day of the year—the Crown court should not be able to deal with all the cases on that matter that all the magistrates courts within its area dealt with the previous day.

I should like a reassurance that someone to whom a magistrates court grants bail on a Friday, only for the prosecution to indicate that it wants to appeal, will know that the appeal will be dealt with on the next working day.

Mr Hilary Benn (Leeds Central, Labour)

I am grateful to the hon. Gentleman for his questions. I take his final point about what he regards as effective operating practice. On his first point, who am I to gainsay the person who played a part in drafting the original legislation? I am happy to confirm that what the hon. Member for Beaconsfield (Mr. Grieve) said in his intervention is indeed the case.

The 1993 Act requires the prosecution to indicate immediately that it intends to appeal. That appeal must be heard, in answer to the substantive question, within 48 hours. It is not quite the 24 hours that the hon. Gentleman mentioned in his final point. However, that does show that the time limits are tight. On his point about statistics, I do not know the answer to that question, but I shall make some inquiries and write to him.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

I am grateful, but I seek one final clarification. If the 48-hour rule is invariable—I am tempted to say that matters of Government policy are invariable one day and the next are subject to exceptional measures—I presume that it would mean that if bail were granted on a Friday and the prosecution indicated that it would appeal, that appeal would be dealt with on the Sunday by the latest, if the Government really mean 48 hours and not 48 hours in working days. What would it mean were bail granted on Christmas eve? I ask so that people know where they stand. Is it a 48-hour rule or a 48-hour rule that does not take account of weekends and public holidays?

Mr Hilary Benn (Leeds Central, Labour)

If I inadvertently mislead the Committee, I shall write to the hon. Gentleman to correct him. However, I believe that it is the latter consideration, because I am not aware that the courts sit on Sundays to consider prosecution appeals against the grant of bail.

Question put and agreed to.

Clause 15 ordered to stand part of the Bill.