Clause 97
11:45 am
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I beg to move amendment 218, in clause 97, page 58, line 29, after ‘murder’ , insert ‘, attempted murder, manslaughter, rape or attempted rape’.
Frank Cook (Stockton North, Labour)
With this it will be convenient to discuss the following:
Clause stand part.
Amendment 219, in clause 98, page 59, line 4, after ‘murder’, insert
‘, attempted murder, manslaughter, rape or attempted rape’.
Amendment 220, in clause 98, page 59, line 7, after ‘murder’, insert
‘, attempted murder, manslaughter, rape or attempted rape’.
Amendment 221, in clause 98, page 59, line 19, after ‘murder’, insert
‘, attempted murder, manslaughter, rape or attempted rape’.
Amendment 222, in clause 98, page 59, line 20, after ‘murder’, insert
‘, attempted murder, manslaughter, rape or attempted rape’.
Clause 98 stand part.
New clause 22—Bail: public protection to be an explicit consideration
‘In Part 1 of Schedule 1 to the Bail Act 1976 (c. 63) (defendants accused or convicted of imprisonable offences) after paragraph 2(1)(a) insert—
“(aa) pose a risk to public safety, or”.’.
New clause 23—Prohibiting bail owing to previous convictions for most serious offences
‘(1) In section 25 of the Criminal Justice and Public Order Act 1994 (c. 33) (no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences) for subsection (2) subsitute—
“(2) This section applies, subject to subsection (3) below, to any of the serious violent offences in Part 1 of Schedule 15 and to any of the specified sexual offences in Part 2 of Schedule 15 to the Criminal Justice Act 2003.”
(2) In consequence of the amendment made by subsection (1), the title of section 25 of that Act is amended by the substitution of “serious violent offence or sexual offence” for “homicide or rape”.’.
New clause 24—Removing presumption of bail for convicted but unsentenced prisoners
‘(1) In section 4 of the Bail Act 1976 (c. 63) (general right to bail of accused persons and others), omit subsection (4) (a person who is convicted of an offence and whose case is adjourned etc).
(2) In Part 1 of Schedule 1 to the Bail Act 1976 (c. 63) (defendants accused or convicted of imprisonable offences), after paragraph 6 insert—
“6ZA The defendant need not be granted bail if he has been convicted but not yet sentenced for an imprisonable offence.”.’.
New clause 25—Removing presumption of bail for prolific or persistent offenders
‘In Part 1 of Schedule 1 to the Bail Act 1976 (c. 63) (defendants accused or convicted of imprisonable offences) after paragraph 6 insert—
“6ZB The defendant need not be granted bail if he is 18 years or over, has been sentenced for recordable offences by the Crown Court or a magistrates’ court on three or more occasions, and within 3 years of the date of the pronouncement of the last such sentence by a court in England and Wales is subsequently arrested (or had information laid against him) for a further recordable offence.”.’.
New clause 26—Removing presumption of bail for those previously convicted of breaching bail
‘In Part 1 of Schedule 1 to the Bail Act 1976 (c. 63) (defendants accused or convicted of imprisonable offences) after paragraph 6 insert—
“6ZC The defendant need not be granted bail if he has previously been convicted for breaching bail whether by failing to abide by bail conditions or by failing to surrender to custody under section [Breach of bail an offence] of the Coroners and Justice Act 2009.”.’.
New clause 27—Breach of bail an offence
‘(1) Subject to subsection (7), an accused who having been granted bail fails without reasonable excuse—
(a) to appear at the time and place appointed for him to surrender of which he has been given due notice, or
(b) to comply with any other condition imposed on bail,
shall, subject to subsection (3), be guilty of an offence and liable on conviction to the penalties specified in subsection (2).
(2) The penalties mentioned in subsection (1) are—
(a) a fine not exceeding level 3 on the standard scale; and
(b) imprisonment for a period—
(i) where conviction is in the magistrates’ court, not exceeding 60 days, or
(ii) in any other case, not exceeding 12 months.
(3) Where, and to the extent that, the failure referred to in subsection (1)(b) consists in the accused having committed an offence while on bail (in this section referred to as “the subsequent offence”), he shall not be guilty of any offence under that subsection but, subject to subsection (4), the court which sentences him for the subsequent offence shall, in determining the appropriate sentence or disposal for that offence, have regard to—
(a) the fact that the offence was committed by him while on bail and the number of bail orders to which he was subject when the offence was committed;
(b) any previous conviction of the accused of an offence under subsection (1)(b); and
(c) the extent to which the sentence or disposal in respect of any previous conviction of the accused differed, by virtue of this subsection, from that which the court would have imposed but for this subsection.
(4) The court shall not, under subsection (3), have regard to the fact that the subsequent offence was committed while the accused was on bail unless that fact is specified in the indictment or, as the case may be, specified in the summons to the magistrates’ court.
(5) Where the maximum penalty in respect of the subsequent offence is specified by or by virtue of any enactment, that maximum penalty may, for the purposes of the court’s determination by virtue of subsection (3) of the appropriate sentence or disposal in respect of that offence, be increased—
(a) where it is a fine, by an amount equivalent to level 3 on the standard scale, and
(b) where it is a period of imprisonment—
(i) as respects a conviction in the Crown Court, by 12 months, and
(ii) as respects a conviction in the magistrates’ court, by 60 days,
notwithstanding that the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose.
(6) Where the sentence or disposal in respect of the subsequent offence is, by virtue of subsection (3), different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.
(7) An accused who, having been granted bail in relation to a charge on indictment, fails without reasonable excuse to appear at the time and place appointed for him to surrender, of which he has been given due notice, shall be guilty of an offence and liable on conviction on indictment to the following penalties—
(a) a fine; and
(b) imprisonment for a period not exceeding 2 years.
(8) At any time before the trial of an accused on indictment for the original offence, the court may on its own initiative, or give permission to the prosecution to, amend the indictment to include an additional charge of an offence under this section.
(9) The penalties provided for in subsection (2) may be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.
(10) A court which finds an accused guilty of an offence under this section may remit the accused for sentence in respect of that offence to any court which is considering the original offence.
(11) In this section “the original offence” means the offence with which the accused was charged when he was granted bail or an offence charged in the same proceedings as that offence.’.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
We now move on to a different aspect of the law and bail procedure, which can be simply described. Amendments 218 to 222 simply seek to add to murder other offences, including attempted murder, manslaughter, rape and attempted rape. The amendments therefore add a further list of offences that the court should be wary of when granting bail. The default position would be that a person will not get bail if they have been charged with one of those offences, whereas that is not necessarily the case at the moment.
We further expand our thinking in relation to those sets of offences by our new clauses 22 to 27, which I shall explain as briefly as I can. New clause 22 seeks to amend the Bail Act 1976 by adding a requirement for the court to consider the way in which the applicant poses a risk to public safety. I suspect that this is in the back of every magistrate’s or judge’s mind when they are considering application for bail: does this person constitute a risk to public safety? However, it would be helpful to set out that consideration expressly in the 1976 Act.
New clause 23, and a number of those that follow it, seeks to adjust the way in which those who are asking for bail are dealt with by the courts. New clause 23 adjusts section 25 of the Criminal Justice and Public Order Act 1994, which deals with
“no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences”.
Proposed new paragraph (2) of that new clause amends the text of that part of the 1994 Act.
The important part of new clause 24 is proposed new paragraph 6ZA:
“The defendant need not be granted bail if he has been convicted but not yet sentenced for an imprisonable offence.”
It seems a matter of common sense that, if someone has been convicted of a reasonably serious offence, but is yet to be sentenced because the court has adjourned sentencing for pre-sentence reports or for other reasons, we need to be careful not to grant bail in the interim.
New clause 25 deals with the removal of the presumption of bail for prolific, or persistent, offenders. Again the important part is proposed new paragraph 6ZB:
“The defendant need not be granted bail if he is 18 years or over, has been sentenced for recordable offences by the Crown Court or a magistrates’ court on three or more occasions, and within 3 years of the date of the pronouncement of the last such sentence by a court in England and Wales is subsequently arrested (or had information laid against him) for a further recordable offence.”
All too often, one reads in the newspapers and comes to learn through constituency casework of offenders who reoffend, on any number of occasions, while on bail. While I am not seeking wholly to remove the courts’ discretion to grant bail in appropriate cases, we need to be much more thoughtful about granting bail to that type of offender.
New clause 26 deals with those previously convicted of breaching bail. Someone who has shown a history of not respecting bail conditions—either by failing to turn up when required to report, or by otherwise abusing the licence that was given to them under a bail order—should not be treated in the same way as someone coming before the court for the first time.
David Howarth (Cambridge, Liberal Democrat)
I do not agree with a lot of what the hon. and learned Gentleman has said. However, on that particular point, it is already an offence not to report. His new clause adds an offence of breaching a condition—only that point is new.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I agree with the hon. Gentleman.
New clause 27 has been taken from Scottish legislation—it is more or less a direct lift, so I cannot claim to have been clever about it. However, I have adjusted the Scottish legislation and put it, I hope, in terms that fit within the jurisdiction of this country. New clause 27 would create a specific offence of breaching bail, for which the court could impose an additional penalty to the one that would be imposed for the underlying substantive offence. I will not go through new clause 27, because it is in the amendment paper, but I hope that the scheme behind it, which has, I think, been in place in Scotland for about 10 years, appeals to the Committee.
That brings us to the end of discussing the new clauses that are relevant to this debate. The scheme is an attempt to tighten up bail, give the public greater confidence in the bail system and make practitioners and those who grant bail more wary of giving bail to those whom the public might not think deserve it.
David Howarth (Cambridge, Liberal Democrat)
I hope that the Government resist these new clauses and amendments—although it is partly the Government’s fault for putting clauses about bail in the Bill in the first place. I think that those clauses are largely there for symbolic value, rather than to make any big practical difference to what is going on.
Two cases have received a lot of publicity: the Weddell case and the Peart case. In the latter case, it should be remembered that the defendant was not on bail in the first place, so it comes down to the Gary Weddell case. There is no need for a panic about bail based on one exceptional case. I urge both the Government and the Conservative party to stay calm and not go down a damaging route that could, in the end, increase the crime rate.
At the end of 2007, the Justice Committee visited Canada, which is normally known for its progressive criminal justice policies. When we visited a large prison near Toronto, we found that it was packed full of people on remand because of bail panic in Canada. The prisoners were not doing anything in the way of activities, because it is difficult to fit remand prisoners into the regime of a prison. They ended up spending a long time on remand and before appearing before the courts. They were often given either no prison sentence at all or a prison sentence equivalent to their time served, and then they were released. Canada ended up with a large prison population, when the prison population had previously been falling. That decline was halted, and a prison population was created that was doing nothing at all constructive. We need to be aware of the dangers of having panics about bail in this country, too.
The consistent view that one gets from practitioners is that bail is virtually never given in murder cases. The Government conducted a snapshot survey in which they found that a surprisingly high percentage—I cannot remember the exact figure, but I think it was 13 per cent.—of defendants in homicide cases had been given bail. That does not fit with the experience of any practitioner to whom I have talked in any court. In fact, Liberty has suggested that such a high percentage is simply a one-off problem—a blip—because there was one case in which a large number defendants who were all aged under 21 were given bail. I urge the Government to conduct another survey, before Report, to see whether they obtain a result consistent with the previous one, because that is not what practitioners say, and it is certainly not what magistrates say. Perhaps I should remind the Committee of my interest—my wife is a magistrate.
David Howarth (Cambridge, Liberal Democrat)
I am afraid of the competitive punitiveness that often breaks out between the Labour and Conservative parties. In this case, it is not just that it might not do any good because it is based on one exceptional case—the Weddell case—which could have been dealt with differently under existing provisions, but it might even lead to an increase in crime in the long term. The problem with tabloid populism is that tabloid editors must respond only to the short term and to selling their paper the following day. They do not have to take responsibility for the long-term consequences of their decisions.
David Howarth (Cambridge, Liberal Democrat)
In this case, we have a particular responsibility to call the other parties and tell them not to do that, because they do not have to and it may make the problem worse.
One must understand how bail works to see what the problem is. If someone is remanded in custody, there are only three possibilities for what might happen to them. First, they may eventually be found guilty and sentenced to prison. Secondly, they may be found not guilty or the case may be dropped, in which case they will be released. Thirdly, they may be found guilty, but sentenced in some way other than prison. Those three possibilities show what the problem is with tightening bail.
The first possibility is that someone is found guilty and sentenced to prison. The time that they served on remand is deducted from their sentence, so putting someone on remand in custody does not increase the time that they spend off the streets in prison, and does not reduce the risk of offending or protect the public. In fact, to the extent that putting people in prison increases the risk of reoffending, it increases the risk of future crime. We know, and the Ministry of Justice briefing shows, that if people are put in prison, they often lose their job and their home, and we know that those two conditions are associated with an increased risk of reoffending.
My remarks do not apply to the Government’s proposals, because there will be so few cases—virtually none—that they will make no difference, but they may apply to the Conservative party’s proposals. From the information given by the Conservative party and certain assumptions, the Library calculates that they will increase the prison population by about 3,000. That is a problem, and those 3,000 people, because they will have been imprisoned, will be more likely to reoffend than people who have not been put in prison.
The second possibility is that the person is found not guilty, the case is dropped and the person is released. In that case, what happens? We will have imprisoned an innocent person for up to six months—that is how long people are held on remand—and perhaps made them worse by putting them in a position in which they lose their job and their home. The third possibility is that the person receives a non-custodial sentence, in which case we will have imprisoned someone whom the court eventually decides should not be in prison with all the effects that that might have.
Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)
The hon. Gentleman seems to be arguing against remanding people into custody at all. Is that his argument?
David Howarth (Cambridge, Liberal Democrat)
That is just one of those populist points that people make. The Bail Act 1976 works. The 1976 Act, under which the Government themselves are operating, creates a presumption in favour of bail. Are the Government saying that they are against a presumption for bail? If they are, they should put a clause saying that into the Bill. However, they have not done so and, since they have not, the Minister’s point also applies to her. Is that what she is saying? No, it is not. Therefore it is also not what I am saying.
The point is that there is a presumption for bail with certain exceptions that are designed to balance the public interest against the downside of remanding people in custody. The question is whether that balance should go in one direction or another. The problem is that, if it is shoved in the direction of bail panic, more crime will be caused in the long term, not in the short term. The tabloid headlines might be avoided in the short term, but in the long term there will be more victims of crime.
I do not want to go through the new clauses one by one, but there are problems with particular ones. The problem with new clause 24, for example, which is about removing the presumption of bail for convicted but unsentenced prisoners, is precisely the problem that I have raised. If someone is remanded in custody for a time, that time is knocked off their prison sentence, so the public are not protected for any more time. If the person is sentenced to a non-custodial sentence, there is a presumption in the law that contradicts the court’s eventual decision. I cannot see how that works.
I do not want to mention all the new clauses one by one, but there are serious problems with all of them. New clause 23, for example, violates human rights standards under existing case law and therefore could not possibly survive. A version of that new clause in the existing law was read down by the courts, because it violated human rights standards.
The political system has to get off the merry-go-round and start thinking about the long term and about how we reduce crime. Amendments with the same intent to the new clauses have been tabled on the part of the Bill dealing with the sentencing provisions, which we will come to later on. This is really about whether criminal justice policy works to reduce crime or to reduce bad headlines.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
In order that we can get to the debate on sentences, I shall try to be as brief as I possibly can.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I thank my hon. Friend the Whip, who supports that.
I assume that some of the amendments express the views of the previous shadow Secretary of State for Justice, who issued proposals on the matter in summer last year. However, although he has moved on, clearly the policy has not. I understand the motive behind extending the provisions beyond murder. In some ways, it does not seem unreasonable that the provisions should extend to crimes that give rise to apprehension of further violence elsewhere. But there are two reasons why I feel unable to accept the amendments.
First, it is right to keep the focus on the offence of murder, which has a unique position within the criminal justice system because of its seriousness, and dealing with that offence is the best way to address the concerns of the public. Obviously, the line has to be drawn somewhere. There are strong precedents for treating murder differently from other offences.
Secondly, and more practically, clause 98 requires bail decisions in murder cases to be made by a Crown court judge. If we were to extend that provision to catch defendants charged with other serious violent or sexual offences, the number of cases to which it would apply would substantially increase, which would have major implications for the Crown court. The number of defendants proceeded against for murder in 2007 was 812, whereas almost four times as many were prosecuted for attempted murder, manslaughter, rape or attempted rape. New clauses 22 to 26 seem to be designed to make remand in custody more likely for a larger group of people, as the hon. Member for Cambridge has pointed out.
The new exception to bail in new clause 22 is unnecessary. It is difficult to see how any defendant who is considered to pose a risk to public safety would not also be at risk of offending or interfering with witnesses, or otherwise obstructing the course of justice. Therefore, they need not be granted bail. The existing exceptions to bail are sufficient to protect public safety, and we do not see any need to add another.
David Howarth (Cambridge, Liberal Democrat)
I support the Minister on this. It is difficult to imagine a case where someone can be a threat to public safety and yet not likely to commit an offence while on bail. That seems to be impossible. The new clause adds nothing to the existing law.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I am grateful to the hon. Gentleman for repeating my point in a different way. We believe that clause 97(3) is a better way of taking public protection into account. It makes the risk of injury to another person a consideration that the courts must have regard to when making bail decisions. It is not a free-standing exception to bail, but rather an adjunct to the existing one. It operates only where there are substantial grounds for believing that the defendant would commit an offence, if released on bail.
New clause 23 would extend the offences covered by section 25 of the Criminal Justice and Public Order Act 1994. It is right that a provision such as this, which is designed to affect the liberty of the unconvicted persons to whom it applies, should be very limited in its scope. The wider the range of offences caught by the new clause, the greater the likelihood that it will catch defendants who would properly be granted bail. The court would then have to strain to find a justification, in the form of exceptional circumstances, for granting bail. We do not think that it would be right to widen the provision in that way.
New clauses 24 to 26 would remove the right to bail for a different group of defendants. Under new clause 24 the presumption to bail would be removed from convicted but unsentenced defendants. The hon. Member for Cambridge made a perfectly valid point in relation to that. It would mean that offenders who are not likely to be sentenced for a period of imprisonment and who have given no cause for alarm during time already spent on bail would automatically lose that right to bail. We do not believe that to be necessary.
The right to bail does not prevent the court from remanding a defendant in custody, regardless of the remand status before conviction, if it believes that conviction, with the probability of a long prison sentence, has increased the risk of the defendant absconding, reoffending or interfering with witnesses.
New clause 25 would create an exception to bail, where the defendant has been convicted three times of a recordable offence. We are not convinced by that; it is a rather prescriptive approach and not necessarily the most helpful way to go about it. Having said that, the courts already take into account a defendant’s previous offending history when making remand decisions.
New clause 26 would mean that the defendant need not be granted bail, if they have a previous conviction for failure to surrender—which is already an offence under the Bail Act 1976—or for breach of bail conditions, which is not already an offence, but would become so under new clause 27.
The problem is that the connection between the previous conviction, and the risk that justifies the refusal of bail, could be tenuous. For example, it is not evident that a defendant who failed to answer his bail 30 years ago as a youth is still not to be trusted now that he has achieved middle age and some element of respectability in his community. However, the court is required to take into account previous behaviour on bail when considering the risk of someone absconding, offending or interfering with witnesses. That is a more flexible approach that the one given by new clause 27, and we expect that the courts would be able to make the decision on a case-by-case basis.
New clause 27 suggests that failure to comply with court bail conditions, while not an offence at present, should be an offence. However, there are other ways in which to deal with the matter. The police already have a power of immediate arrest when a breach occurs, and courts can always revoke bail and remand the defendant in custody or alter the conditions, if they think it appropriate. The risk of immediate custody without the need of a trial is a strong incentive to comply with bail conditions, so we do not believe that there needs to be a separate offence of breach.
When an offence is committed while on bail and that fact is specified in the indictment, new clause 27 would require the court to have regard to that and to any previous convictions for breach of a bail condition when determining sentence. The fact that an offence was committed on bail is already an aggravating factor that the court should take into account, when considering the appropriate sentence for a particular offence. It is questionable therefore how much difference adding another year to the maximum penalty would be likely to make to the sentence actually imposed.
Has the hon. and learned Gentleman quantified the resource implications of the proposals? Does he accept, as the hon. Member for Cambridge has said, that an extra 3,000 prison places might be needed? How would that be achieved? However, that is an aside to the general principle that the new clauses are not necessary, because the clause strikes the proper balance between the right to bail and the exceptions that a court can take into consideration, if it considers that a particular defendant should not be given bail for the specific offence that is before them? On that basis, I ask the hon. and learned Gentleman to withdraw the amendment.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I am sorry that the hon. Member for Cambridge has accused me of following a tabloid agenda. I have been accused of many things in my time. I have even worked for a number of tabloid newspapers as a defamation lawyer, but I have never followed a tabloid agenda.
David Howarth (Cambridge, Liberal Democrat)
From the low key way in which the hon. and learned Gentleman discussed the new clauses, I fully accept that he personally rarely follows the tabloid agenda. However, on this occasion, his party does.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
Let us not have a lengthy discussion about that matter. I hope to have a debate in a reasonably intelligent way—although I sometimes fall below that—on how the law of bail should develop. The Bill adjusts the Bail Act 1976. Common to both the Bill and the 1976 Act is the element of discretion that is given to the courts to deal with cases in a just way. As the hon. Gentleman’s wife has no doubt experienced in the granting of bail applications as a justice of the peace on the Cambridge bench, I assume, so from time to time have I, as a recorder in the Crown courts of London as well as in Nottingham, to deal with bail applications. As, no doubt, does the hon. Gentleman’s wife, I have to sentence people and do so after some delay between the finding of guilt and the sentencing hearing, so neither she nor I is unaware of the implications of some of the arguments and their logical extensions that I have been putting forward.
Having, as I have said at least once in our proceedings during the past few weeks, been to about 50 prisons in England and Wales in almost three years, I am utterly aware of the disgusting state of some of them and the identity and nature of some of those who are in them, and who should not be in them but elsewhere. I am wholly aware of the fact that, were my new clauses to be accepted, more people would be going to prison, but we cannot avoid such implications and consequences in order to have a moderately calm discussion about the law of bail.
I did not actually mention any particular case—others have done so, but I deliberately did not—but one must look at the Government’s record on prison capacity over the past 10 or 11 years, in which time prisoner numbers have increased from about 61,000 to about 83,000 but the available space to house them has not increased adequately to cope with them. In the case of about 20,000 to 23,000 prisoners, two men share a single-man cell, or sometimes three men share a two-man cell. In essence, when prisoners are doubled up, it means that two adult men spend long hours of every day eating, defecating, sleeping and reading in a shared lavatory.
One must be very careful about wanting more people to be pushed into such conditions or producing authorities that suggest that that should happen. I do not want to see that. I do not want to undermine judicial discretion on the granting of bail, but I do think that every now and then we need to think a bit more carefully about the situation.
I accept that this Government, who have been in office for the past 11 or so years, could not always be accused of thinking carefully. They frequently make many mistakes. I dare say that they do not do things by mistake, but they do make mistakes, and their approach to prisons, the law of bail and indeed the whole canon of criminal justice law is littered with mistakes. My purpose in discussing these clauses is not that I naively thought that everything that I said or drafted would find its way into the Bill but that I thought that we need to think about such matters from time to time. It does not matter whether we think about these questions in a rage or in a calm and rational manner; they need from time to time to be thought about. It was in that spirit that I entered the discussion, and it is in that spirit that I beg to ask leave to withdraw the amendment.