Schedule 10 - Amendment of enactments relating to bail
Legal Aid, Sentencing and Punishmentof Offenders bill
11:30 am

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

I beg to move amendment 282, page 165, line 33, leave out paragraph 3.

Philip Hollobone (Kettering, Conservative)

With this it will be convenient to discuss the following:

Amendment 283, page 166, schedule 10, leave out line 14.

Amendment 284, page 166, schedule 10, leave out line 42.

Amendment 315, page 169, line 7, schedule 10, leave out paragraph 25.

Amendment 316, page 169, line 12, schedule 10, leave out paragraph 26.

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

We are not in for a marathon. The amendments would remove the age criterion from the bail reforms, so that they applied to children as well as adults. They would also extend the availability of remand from its being only for domestic violence cases, as the Government have proposed, to its being for any case where there are substantial grounds for believing that if released, the defendant would commit an offence that caused physical or mental injury to any other person. The amendments would also retain many of the provisions under the status quo for adult bail. They would ensure that there were only minor alterations to part 1 of the Bail Act 1976.

The first set of amendments would remove the Government’s new plan to impose the “any real prospect” test. I understand why the test has been applied and I fully applaud what the Government are attempting to do. I believe, however, that there are possible unintended consequences that we should discuss. None of us would want to see people remanded in custody for offences for which they will not be sentenced to a term of imprisonment, if found guilty. We all start from that point. However, the test is too narrow and could lead, for example, to dangerous offenders or offenders who may abscond being released on to the streets.

In 2010, 31,664 offenders absconded while awaiting trial. That is a vastly reduced figure compared with the 57,500 who absconded in 2003. Although the latest figure is still too high, it is foreseeable that it will increase if the Government make it more difficult for the courts to impose bail on defendants who may abscond. In short, the number of absconders has fallen. Now is perhaps not the time to allow that figure to increase.

The Prison Reform Trust, while welcoming the intention to remove the power of courts to remand in custody defendants who would be unlikely to receive a custodial sentence, refers to the 2007 figures. That year, some 11,400 of the 55,000 people remanded in custody were subsequently acquitted—21%—while another 30% received a non-custodial sentence. The Government are rightly responding to that problem. The average waiting time for those remanded in custody was 13 weeks. Those legally innocent people were subjected to a damaging legal sanction. The fact that a majority of people remanded in prison awaiting trial did not subsequently receive a custodial sentence clearly demonstrates that the current practice is unjust, arbitrary and imposes punishments that are sometimes disproportionate to the offence.

While I accept the Government’s intention and, in effect, fully agree with the need for something to be done, I refer again to the law of unintended consequences. There is some concern that the any real prospect test may prejudice some cases at a later stage. It is foreseeable that juries or judges may view an earlier decision to remand a defendant in custody as a tacit implication of guilt, which is not the case. The belief is that defendants are innocent until proven guilty. The Magistrates’ Association said:

“It effectively places the court considering bail in the same position as a sentencing court; it is unclear whether it is for the Crown’s case to be taken at its highest. Many bail cases are required to be decided on minimal information without the availability of reports and ability of defence solicitors to effectively take instructions and mitigate. This but for all the most obvious or simple cases [where bail would usually be granted anyway] is seen as a fundamental weakness of the test.”

There is also concern that defendants may have the opportunity to interfere with witnesses to force them to change their evidence. That is a fundamental danger.

The other amendments seek to extend the caveat for domestic violence to all cases where there is a serious risk of physical or mental injury. Justice has noted a

“number of cases where there is no real prospect of a custodial sentence but there is serious risk, that cannot be dealt with by conditional bail, that a defendant will commit serious violent or sexual offences while on bail or interfere with witnesses…a remand in custody in that instance should continue to be available.”

I accept the good will behind the Government’s amendments, but there is unfortunately a glaring possibility of unintended consequences. As the Magistrates Association has made its remarks so stridently, I urge the Minister to pause on this part of the Bill.

Anna Soubry (Broxtowe, Conservative)

Does the right hon. Gentleman share my concern that when analysing the figures it is important to remember that some defendants may receive a non-custodial sentence because they have spent a period on remand and there may have been changes in their circumstances, notably becoming free of drugs? Does he agree that there is evidence that a sentencing judge may decide that because of advances made on remand a non-custodial disposal is appropriate in the particular circumstances, and that that may skew the figures?

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

I agree. That is an appropriate point, which is evidence based.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

I thank the right hon. Gentleman for his support in principle for what we are seeking to do. The amendments in the group before us all affect provisions relating to defendants under the age of 18. Amendments 283, 284, 315 and 316 refer to matters of substance, and amendment 282 removes provisions to ensure that the same definitions are used throughout the Bail Act 1976.

Amendment 284 would cause the restriction on remanding in custody to apply to defendants under 18. The effect would be to remove the condition that the defendant has attained the age of 18 when applying the no real prospect of custody test in parts 1 and 1A of schedule 1 to the Bail Act. Amendment 283 makes a similar change to section 7(5A) when a person is arrested for absconding or breaking his bail conditions.

Amendments 315 and 316 affect part 2 of schedule 1 to the 1976 Act in a similar way to amendments 284 and 289. Part 2 of schedule 1 concerns defendants accused or convicted of non-imprisonable offences. To ensure a uniform approach for the no real prospect of custody test, paragraphs 25 and 26 of schedule 10 to the Bill amend part 2 of schedule 1 to the 1976 Act so that certain exceptions to the grant of bail apply only to those aged under 18 or who are convicted of an offence. The effect of amendments 315 and 316 will be to expand the restriction on custody in part 2 of schedule 1 so that it applies to both adults and those aged under 18 alike.

Given the right hon. Gentleman’s support in principle, I understand why it may seem strange that a provision designed to make it less likely that defendants are remanded in custody should be limited to adults. Surely  defendants under the age of 18 should be the first to benefit from such a provision. I assure the right hon. Gentleman and the Committee that defendants under the age of 18 are not excluded from the test, but it is applied to them differently, as I will explain.

The reason is that the consequences of being refused bail are different for those aged under 18, and do not necessarily involve remand to custody in the usual sense. In most instances, a defendant aged under 18 who is refused bail will be remanded to local authority accommodation. That will sometimes mean that they are placed in a children’s home. In other cases, they will return to their own homes subject to bail-type conditions. In all such cases, the defendant is accommodated in non-secure accommodation and, critically, the local authority is responsible for ensuring and promoting their welfare during that difficult period. As paragraph 386 of the explanatory notes states, the existing grounds for refusing bail will continue to apply to those aged under 18 to ensure that defendants

“aged under 18 who would otherwise be granted bail under the new test can continue to be given ‘looked after’ status by the local authority. This means that the person is assessed by the local authority and receives appropriate assistance and supervision.”

Helen Goodman (Bishop Auckland, Labour)

The Minister is making an interesting point. It would be helpful if he could give us some statistics on what is happening to those young people. If he does not have the statistics now, perhaps he could write to members of the Committee before Report.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

I should be grateful if the hon. Lady could assist me and my officials in giving information to the Committee. Perhaps she could frame her request slightly more precisely. If she intervenes later, perhaps she will give more details on exactly which data she wants. She has provided quite a wide target for my team to engage with; I should be grateful if she could narrow it to precisely the data she requires.

The equivalent of a no real prospect of custody test is applied in respect of defendants aged under 18 in chapter 3 of part 3 of the Bill. However, in part 3, the test is phrased in the positive rather than the negative. Therefore, a condition in one of the tests that must be met before a defendant aged under 18 can be remanded in secure youth detention accommodation is that there is a real prospect of custody. Provisions in chapter 3 include measures to restrict the use of secure remand so that in most cases a defendant aged under 18 receives a remand to local authority accommodation. Only if one of the two tests set out in chapter 3 is met can a defendant aged under 18 be remanded securely in the way that an adult who is not granted bail may be remanded. An adult who is remanded in custody is sent to prison. The equivalent for a defendant aged under 18 is detention in a specific juvenile custodial estate: a secure children’s home, a secure training centre or a juvenile young offenders institution.

The test for defendants aged under 18 is similar to those that apply under the Bail Act. The first set of tests applies where the offender is charged with a serious violent or sexual offence. The second set applies where the offender has offended while they have been on  remand, and it is here that the no real prospect of custody test applies as it does for adults under the Bail Act 1976.

Amendment 282 affects paragraph 3 of schedule 10, which is merely a drafting provision. Provisions elsewhere in the Bill change the definition of a young person so that it extends to those aged 17, and the expression “child or young person” is therefore used in various places to mean under the age of 18. Paragraph 3 of schedule 10 amends section 3(7) of the 1976 Act. In that section, the existing reference to a child or young person is intended to mean those under 17. It is necessary to amend it to make that clear. Removing that drafting change would therefore cause confusion. In light of all that, I hope that the right hon. Member for Dwyfor Meirionnydd will withdraw the amendment.

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

I thank the Minister for that explanation. It is much clearer and considerably more humane than I understood when I first read the Bill. To a certain extent, I am placated and satisfied. I am grateful to the Minister. I therefore beg to ask leave to withdraw the amendment.

Helen Goodman (Bishop Auckland, Labour)

I beg to move amendment 363, page 166, line 32, schedule 10,leave out paragraphs 7 to 18.

Philip Hollobone (Kettering, Conservative)

With this it will be convenient to discuss amendment 364, page 168, line 15, schedule 10, leave out paragraphs 19 to 23.

Helen Goodman (Bishop Auckland, Labour)

I am afraid we are going to have more principled disagreements in the discussion of these amendments. I want to set them in context. Currently, the Bail Act provides different rules for three classes of offender. The rules are different for people who are accused of committing indictable or either way offences. There is a set of rules for people accused of committing summary offences and a separate set of rules for people accused of committing non-imprisonable offences.

I confess that when I first heard about what the Government were going to do with introducing the no real prospect test, I assumed that they were just talking about non-imprisonable offences. I think that a lot of people who do not think about such things all the time might have had that understanding. The no real prospect test, which the Minister is introducing, has a description that is perhaps—I do not want to say misleading, because that would suggest that it was unparliamentary—open to misunderstanding.

My amendments are related to indictable or summary offences. We would leave the Government’s no real prospect test in place for non-imprisonable offences. I will say what they are. Again, I think that that will be of great interest to the right hon. Member for Carshalton and Wallington. They include making false statements to obtain a driving licence, being drunk and disorderly, evading TV licence payment and failing to produce a railway ticket. They are offences on which what the Government are saying is fairly reasonable. The number of people remanded in that category is around 1%, which is about 9,000 a year. We are able to accept the Government’s proposal for that class of offence. However,  the Opposition cannot accept it for summary and indictable offences. Amendments 363 and 364 seek to reverse the Government’s proposals on part 1 and part 1A offences.

At the moment, people are presumed to get bail unless they are expected to commit further offences, expected to abscond or not turn up, or expected to interfere with witnesses or to be a danger to others. The tests are different for the three different classes of offence. At present, there would have to be a high level of risk for a non-imprisonable offence, and medium risk of committing another offence, interfering with witnesses or being a danger to others for a summary offence. The level of evidence needed for an indictable offence is lower, because the offences are more serious. Taking into account the seriousness of such offences, introducing the no real prospect test would be risky.

I remind the Committee of the classes of offence we are talking about. Indictable offences include grievous bodily harm, sexual assault, fraud, perverting the course of justice, robbery and burglary. Summary offences include assault, theft, robbery and burglary. They are so serious that it would not be sensible for the Government to use the no real prospect test. The kind of offences that people alleged to have committed those crimes would commit, the consequences if they abscond, the risks if they interfere with witnesses and the danger to others are serious. What the Government are doing with the no real prospect test undermines community safety and a proper judicial process.

I remind the Committee of what is going on at the moment. As the right hon. Member for Dwyfor Meirionnydd said, 30,000 people abscond a year. If we go down the Government’s path of having a no real prospect test, that number is likely to increase. In answer to a parliamentary question, the Minister told me that the number of offences committed while people are on bail is 70,000 a year. That is 200 a day, which is an extraordinarily high number, yet the Minister is going to relax the number of people who are remanded to prison, so the number can only go up.

The hon. Member for Pendle (Andrew Stephenson), who has taken an interest in this issue, has discovered that the offences committed while people were on bail in 2009 included 27 murders. The Minister wants to save money, but saving money and prison places at the expense of 70,000 offences a year is simply not acceptable. It is not how to promote community safety.

The no real prospect test could undermine the justice system in another way. The problem is that there could be grounds for an appeal if someone’s prospects of being found guilty have been considered and they have been given bail at the first hearing and then subsequently been found guilty at the final trial. The Minister needs to take this measure away and look at it in a completely different manner. A decision on bail is completely different from a decision on sentencing. It is a different sort of a thing. What the Minister is doing is conflating those two things in a most unhelpful way that is only likely to increase the level of crime in this country.

I hope that I have made it clear that we are extremely concerned about this measure. Our objection is fundamental. It is one of the worst things in this entire Bill and I will definitely press the amendments to a vote, unless the Minister tells me that he accepts them.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

The hon. Lady’s charm tempts me. However, I will have to disappoint her. She presages her remarks by saying that there was a difference of principle between us. Her amendments are fatal in her terms to 99% of the underlying intentions. The one example that she did give us where she was offering us support was around non-imprisonable offences, which illustrates the issue that we are trying to address with this clause.

Schedule 10 makes a number of amendments to the Bail Act that will restrict the availability of remand in custody. At present, the question of whether it is likely that a defendant will be sentenced to imprisonment if convicted is not a consideration in deciding whether he or she should be granted bail. The principle underlying this provision is that it should be such a consideration—that is the principle that we are delivering with this schedule. It is said that decisions regarding remand sentences are completely separate and they are as the law now stands. The issue that this Committee and Parliament have to address is whether they ought to be.

The current arrangements mean that a defendant can be remanded in custody—for example, to prevent him or her from committing further offences—even though the court would not consider itself justified in imposing a prison sentence for that reason after their conviction. The hon. Lady has conceded that point of principle. She would support us on non-imprisonable offences, because of the limited number of circumstances—she said that the figure was 1%, which I have no reason to doubt—but she conceded that if the offence was non-imprisonable, the offender should not be remanded in custody, so we have her support on that point. All we seek to do with the provisions that she is declining to support is to use the practicality of whether someone will reasonably be given a prison sentence as a bail test.

The existing position should strike people as both odd and unjust. Where the prevention of further offending is not a sufficient reason for imprisoning people who have been convicted, how can we justify detaining them before they have even been tried? Another reason for remanding defendants in custody is to secure their attendance at court, but doing so is a very expensive way of getting them in front of the magistrates, and it is questionable whether that is necessary. If defendants fail to appear, they can be tried in their absence, and that already happens for thousands of people who are granted bail and do not turn up. When they are granted bail, they are warned that the case may proceed without them if they fail to surrender, and if they do not appear the trial will go ahead.

Remand in custody is often used for someone charged with minor offences to ensure access to health services, such as mental health treatment, in prisons, but that is not an appropriate way to access treatment resources. In general, defendants should not be remanded in custody when it is apparent to the court that there is no real prospect of the defendant being imprisoned if they are convicted. That is not some Alice in Wonderland question of having the sentence first and the verdict afterwards. The court is not expected to engage in a sentencing exercise before the trial; the provision only affects cases in which it is clear at the outset that the alleged crime is not serious enough to warrant a custodial sentence. When that is the case, remanding the defendant in custody is generally disproportionate and it is not a sensible use of prison, as that sort of defendant does not pose a serious threat to public safety.

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

I have one specific question. If a person is obviously suffering psychiatric problems and, even at first instance, there might be a problem about their fitness to plead, would the court, given the likelihood of its trying a non-imprisonable offence, be able to remand them for psychiatric reports under the proposed law?

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

I will obtain a definitive answer for the right hon. Gentleman, but I say to him that, in those circumstances, we should not be using the justice system to detain someone who needs to be detained. That is a mental health issue that should be dealt with under an appropriate mental health order.

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

At the end of the day, as I have seen in practice, a person under those circumstances—very disorganised, in huge confusion and having psychiatric problems—might be remanded in custody simply to sort out whether he or she is capable of giving a plea to the court, and the judges may ask for a report to be prepared within 14 days or whatever. All I am asking is whether there is flexibility in those, thankfully, very small number of cases.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

If there is no prospect of that person going to prison as a result of the offence for which they have been arraigned, they would not pass the no prospect test, but if there is a mental health requirement, that should be properly proceeded with under the mental health arrangements. We are not here to abuse the justice system at very significant expense because other parts of our whole social justice system are not working properly. Frankly, too many people with either mental health or addictive health issues should never have made their way into the justice system in the first place. If we had a system—which is what we are attending to—that delivered earlier intervention, with mental health diversion, better addiction treatment and all the things we are attempting, we would end up in a better place, rather than having people reposing in custody who, frankly, should not be there. I can understand why we got into this position: because the practicality for magistrates, seeing a situation, is that they think, “Well, if we pop him inside, he’ll get some health treatment and all sorts of other things sorted out for him”, but that is not what prison is for.

Kate Green (Stretford and Urmston, Labour)

I absolutely understand where the Minister is coming from, and I have made such decisions, when there seemed to be no other way of getting the mental health assessment required other than by ensuring that that person is in custody in order for the psychiatric assessment to be made. It is not a good situation—he is absolutely right—but can he guarantee proper mental health assessments for people if they are not diverted to custody, which I do not want to see? He sounds alarmed by the failure of the system so far, but what guarantees can he give that it will be put right?

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

That is why the Government have pledged to put in place mental health diversion and liaison in every police custody suite and every court by 2014-15. We are conscious of the serious issue and are putting in resources and everything else to attempt to address it.

Dave Watts (St Helens North, Labour)

There is a great deal of sympathy for the Minister’s position, but he is talking about providing alternative services in 2014-15, but when will the Bill come into effect? Will there be a gap between the effective service being put in place and the introduction of the Bill?

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

The introduction of mental health diversion and liaison by 2014 is not a legislative thing but a policy issue which is being put in place by the Department of Health. My right hon. Friends the Secretary of State for Health and the Justice Secretary together made that commitment last year.

In answer to the specific point made by the right hon. Member for Dwyfor Meirionnydd about remand: defendants can be remanded in custody for reports. That might go some way towards addressing the circumstances to which he referred.

Dave Watts (St Helens North, Labour)

This is an important point. We accept that there is an alternative to the present system but, potentially, there is a gap between the introduction of the Bill and the future provision by the Department of Health. If so, Labour Members at least would be interested to know how such people will be dealt with in the gap.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

We are talking about something different. If people ought to be detained under mental health legislation, they should be detained under mental health legislation—they should not be part of the criminal justice system. There should be no confusion about the purpose of mental health liaison and diversion: if people are coming into the criminal justice system because they have committed crimes, it would be sensible to ensure that we have addressed the mental health issues before we go on, as we have to, to address the justice issues. Any justice disposal might then be made in the light of the proper mental health assessment and treatment. That is the system we can more effectively work towards.

If, however, magistrates are faced with someone who plainly should be detained for the safety of the community, but who has not committed an offence, and if the assessment is that the person is a risk because of mental health, then we should use the proper legislation and framework—it ought not to be the criminal justice framework that results in those people being detained. Defendants who do not pose such a threat will not pass the no real prospect test and so will still be liable to be remanded in custody.

Some responses to the Green Paper argued that special considerations might apply if offences were committed in a domestic setting, in that an offence that does not require custody might nevertheless imply a risk of domestic violence if the defendant were bailed. We will come on to such a discussion with later groups of amendments. We have recognised the force of that argument and have taken account of it. Remand places are too expensive to waste on defendants who do not need them. We want to ensure that they are used only where it is necessary to protect the public. I shall obviously invite the hon. Lady to withdraw her amendment; however, given the way in which she spoke to it, it does not sound as though I shall have much luck.

Andy Slaughter (Hammersmith, Labour)

The Minister is completely out of luck, because I was not going to speak on the amendments. However, having heard what he said, I am, far from being persuaded, alarmed. In conflating non-imprisonable offences and offences assessed using the no real prospect test, he has, far from setting our minds at rest, identified the problem that we see. It is not only we who see it, but sentencers. The Minister will probably be familiar with the words of John Thornhill, the chairman of the Magistrates Association, who said of the provision:

“We are disappointed that the government has not understood our arguments for maintaining the right to remand in custody as a bail option for every defendant. Whilst the ‘no real prospect test’ provides for a degree of discretion it requires a presumption as to sentence at a very early stage, which is not in the interests of justice.”

That is right.

I appreciate that I may be speaking as much as a lawyer as a politician, but the process of considering bail is discrete from the process of sentencing, and the provision puts impossible burdens on sentencers—tribunals and courts—to decide the likely sentence at a very early stage of proceedings.

The Government need to think very carefully about what they are doing, because they are overturning a substantial body of law and practice, which has grown up under the Bail Acts over many years. The Bail Acts have often been criticised by the Conservative party, which says that bail is given too freely. I find what is happening now, which stands that on its head completely, difficult to understand.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

May I make the position clear to the hon. Gentleman? He has suggested that an intolerable burden will be placed on people making assessments, and that is not the case. The provision applies only where it is clear on the information before the court that the defendant has no real prospect of being imprisoned if convicted. The court is not expected to carry out a detailed assessment, and if the information is equivocal the provision will not apply. That is clear, and it takes precisely the position of principle that the hon. Member for Bishop Auckland concedes: with non-imprisonable offences the provision would have Opposition support. The cases that we are concerned with are ones in which people will not go to prison.

Andy Slaughter (Hammersmith, Labour)

The Minister is struggling. Just saying that something is clear does not mean that it is clear. The bail regime sets out a variety of criteria to be used when considering bail. The Minister mentioned the issue of further offending: to my mind, it is fundamental to the rule of law that where there is a severe risk of further offending people should not necessarily be told immediately that they can go from the court.

I am sure that when we get to the amendments on indeterminate public protection sentences, we shall see whether the Government have any solution to the problem of people who are a clear danger to the public being released into the community. In the present case—in the wake of serious rioting, which apparently does affect the Government’s view on clause 71—the Minister is saying that they are prepared blithely to tear up the Bail Acts and that criteria such as further offending, surrender to bail and intimidation of witnesses can all be dealt with in the casual manner that has been described.

The idea that the solution is a great increase in trials in absentia is ludicrous. A trial in absentia may perhaps happen sometimes for minor motoring offences and things of that kind, but I should have thought that the courts believe that every trial without a defendant present is a circumstance for regret.

Robert Buckland (South Swindon, Conservative)

If the hon. Gentleman had been speaking 10 years ago he would have been right about more serious offences, but decisions of the Court of Appeal—there was a decision eight or nine years ago—have changed the regime on trials in absentia. They are now somewhat more common, even in the Crown court, than they used to be.

I would not say that that is a desirable circumstance, but a series of tests is applied that makes them more common than they were, and most practitioners will have had some experience in the Crown court of a trial in absentia; so I do not think that the hon. Gentleman’s point is as strong as he thinks.

Andy Slaughter (Hammersmith, Labour)

The hon. Gentleman, as he often does, makes my point for me, and says that such a consequence is to be regretted. Indeed, the Minister suggests that an increase in trial in absentia could be a possible outcome of the provisions becoming law. That is not something we would wish for, and neither would we wish victims or witnesses to be put at risk. Louise Casey, the commissioner for victims and witnesses, stated:

“Victims’ groups during consultation have expressed alarm about proposals to remove the option of remand where the offence with which they are being charged is unlikely to attract a custodial sentence. The removal of a remand in custody for defendants unlikely to receive a custodial sentence does not recognise the other safeguards which the Bail Act provides.”

We agree with that and that where possible, judicial discretion should be preferred and not curtailed in the way it is now—that goes back to the point raised by the Magistrates Association.

By withdrawing clause 71, the Minister has conceded that it is appropriate for magistrates to have greatly enhanced sentencing powers and the ability to sentence for 12, rather than six, months for a single offence. The Government should think again about that issue, because it is a far more significant change than it is presented as being. Either the Government are being disingenuous, or they have not realised the implications of the provision.

I suspect—I think my colleagues share this view—that what lies behind this measure is an attempt to save money. It has not attracted the same degree of notoriety, but it is comparable with the provision for a 50% discount on sentencing for an early guilty plea, which aimed to save £140 million. The legislation under discussion would save rather less, although the Government say that it will still save a significant sum of money. Such provisions are a way of reducing the prison population without being seen to be “soft on crime”—in other words, without reducing tariffs or saying to the general public and Back Benchers from the Minister’s party that we are taking a less punitive approach to incarceration.

Given the cuts that the Department has to make, there must be a reduction in the prison population. The Government have conceded that, and they are seeking to make that reduction. However, it will have unintended  consequences, which will weaken judicial discretion and the rule of law, and allow people to be released inappropriately into the community.

Kate Green (Stretford and Urmston, Labour)

In my experience, bail decisions are among the hardest decisions taken by lay magistrates, particularly if they are sitting alone, which can happen in some circumstances, including the early stages of a case when less information is available to provide a sense of whether a custodial sentence is a real prospect.

I have a few questions for the Minister, and a final point for him to consider. I am concerned that we do not have enough information about the implications of the proposal and how it will translate in practice. Some of my written questions ask for a breakdown of who is remanded in custody, on what grounds, and their gender and ethnic make-up, and that information is not as available as I would have liked. I would be grateful if the Minister told us to what degree he intends to monitor those who receive remand on bail should this change come through, and the nature of those people who will continue to be remanded in custody. What breakdown will he track of the reasons for remand in custody and the gender, ethnic and age mix of those defendants, and so on?

I should also be grateful if the Minister assured us that if the provisions come into effect, there will be decent training for decision makers. In my view, it would be dangerous to ask decision makers to go in and determine whether there is a reasonable prospect of custody, without a substantial rethink of the training offered, particularly to lay magistrates, who will struggle to make such decisions on the basis of the training that they currently receive. I hope that the Minister will tell the Committee what training he plans to put in place for those decision makers. I would be grateful if he told us what monitoring will be undertaken in relation to the ultimate sentences that people receive for offences and what happens to reoffending rates.

Finally, will the Minister clarify something that he said in response, I think, to my hon. Friend the Member for Bishop Auckland? He said that now, the ultimate sentence is not a relevant consideration for bail; in the future, it will be a relevant consideration. Will he clarify whether he has considered whether it will be a relevant consideration or the only relevant consideration and, if it is the latter, why he does not think that it could be one of a number of considerations but has to be the sole consideration that courts should take into account?

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

I shall respond to the questions asked by the hon. Member for Stretford and Urmston. I was asked about the statistical data that will follow from this. Happily, the statistics and data are now largely out of my hands and in the hands of the chief statistician; it is up to her to ensure that they are beyond reproach. If I have not satisfied the hon. Lady so far with my written answers to her questions, I am unlikely to be able to improve on that, because have done my best with those questions, but of course, as with any policy being implemented, the consequences will be followed. The criminal justice area is one in which a very substantial amount of data will be available to us and available to her and, of course, the public.

I noted the hon. Lady’s point about training for decision makers, but I hope that she will understand that in this context the no real prospect test is not met if it is not clear that the outcome will be a non-custodial sentence, based on the offence. On the hon. Lady’s final point about whether it is “a” or “the”, it is “a”. The point that we have been discussing is one of the requirements, one of the tests, that will have to be met, along with the others in the Bail Act 1976, so it is adding to those.

Helen Goodman (Bishop Auckland, Labour)

I thought that this morning the Minister would come to the Committee and say that there was a problem with the 11,000 people who are remanded to prison and subsequently given a non-custodial sentence and that that was a justice issue. He has not mentioned that group of people. Indeed, they have been mentioned only by the hon. Member for Broxtowe, who made the very sensible point that that figure was inflated, and that one reason why some of those people do not go on to receive a custodial sentence is that they have already served some time in prison.

I am afraid that what has been revealed is that the Government are not actually interested in the justice issues. They are not interested in whether the bail decision will undermine the subsequent court process by allowing more people to interfere with witnesses, by enabling more people not to turn up. They are not interested in community safety. They are not concerned that, at the moment, 70,000 crimes are committed every year, and that number will only go up. What they are interested in is saving money. The estimate that they have included in the impact assessment for the Bill is that the measure will save 1,300 prison places and £40 million. Opposition Members do not think that this is a reasonable way to save £40 million, because it undermines the justice system and damages community safety.

May I respond to the hon. Gentleman’s suggestion that I was being inconsistent? My point about distinguishing the non-imprisonable offences is that those are the only ones where it can really be known that there is no real prospect. I therefore intend to press the amendment to a vote.

Helen Goodman (Bishop Auckland, Labour)

I beg to move amendment 365, in schedule 10, page 170, line 5, at end add—

‘29A After section 1 of the Bail (Amendment) Act 1993 at end insert—

“1A Appeal against a decision granting bail in the Crown Court

(1) Where a Crown Court grants bail to a person who is charged with or convicted of an offence triable on indictment the prosecution may appeal to another judge of the Crown Court against the granting of bail.

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

(a) by or on behalf of the Director of Public Prosecutions; or

(b) by a person who falls within such a class or description of person as may be prescribed for purposes of this section by order made by the Secretary of State.

(3) Such an appeal may be made only if—

(a) the prosecution made representations that bail should not be granted and;

(b) the representations were made before it was granted.

(4) In the event of the prosecution wishing to exercise the right of appeal set out in subsection (1) above oral notice of appeal shall be given to the Crown Court at the conclusion of the proceedings in which such bail has been granted and before the release from custody of the person concerned.

(5) Written notice of appeal shall thereafter be served on the Crown Court and the person concerned within two hours of the conclusion of such proceedings.

(6) Upon receipt from the prosecution of oral notice of appeal from its decision to grant bail the Crown Court shall remand in custody the person concerned until the appeal is determined or otherwise disposed of.

(7) Where the prosecution fails within the period of two hours mentioned in subsection (5) above to serve one or both of the notices requires by that subsection the appeal shall be deemed to have been disposed of.

(8) The hearing of an appeal under subsection (1) above against a decision of the Crown Court to grant bail shall be commenced within 48 hours excluding weekends and any public holiday (that is to say Christmas Day, Good Friday or a Bank Holiday) from the date on which oral notice of appeal is given.

(9) At the hearing of any appeal by the prosecution under this section such appeal shall be by way of re-hearing and the judge hearing any such appeal may remand the person concerned in custody or may grant bail subject to such conditions (if any) as s/he thinks fit.’.

The amendment would give the prosecution a right of appeal in a case where bail is granted and someone is not remanded to prison. The process we have set out parallels the current appeal process where people are remanded and the defence wishes to appeal.

The issue was brought to our attention as a result of the horrific case of Jane Clough. I do not know whether hon. Members are familiar with the case, but some of Jane Clough’s relatives are listening to the debate, and I commend them on the way in which they have persisted with their campaign to ensure that the terrible events that overtook her do not occur again.

Jane Clough was murdered on 25 July last year by her ex-partner, Jonathan Vass, who was out on bail, despite the large number of charges against him. In fact, he had been charged with nine counts of rape and four counts of common and sexual assault against Jane. The case in which he was to be tried for those counts of rape and assault was due to be heard, but the judge decided, notwithstanding what the Crown Prosecution Service had told him, that Jonathan Vass should not be remanded to prison and should be released on bail.

The case raises two questions. One is about the judge’s decision making; the other is about the process. I know it is traditional never to criticise the judiciary, but on this occasion I will. This decision was quite extraordinary, totally outrageous and completely incomprehensible. In any other profession, such a decision would have led to disciplinary action. I would like to ask the Minister what happened, and whether he is attending to the need to address the disciplinary issues within the judiciary when its members take decisions which are so far removed from what the British public would see as sensible and reasonable.

Anna Soubry (Broxtowe, Conservative)

Can the hon. Lady help us with this: had any evidence been placed before the Crown court judge as to the risk that this particular man posed, and was the judge in full receipt of all the information that would have led him or her to come to what would have been the right decision?

Helen Goodman (Bishop Auckland, Labour)

My understanding is that the Crown Prosecution Service had given the judge the information. That is also what the Crown Prosecution Service itself says. Indeed, that is one of the reasons why this case is so alarming. It relates to the long-standing problem of ensuring that domestic violence is taken seriously in the court system.

Dave Watts (St Helens North, Labour)

My hon. Friend’s experience in the case that she sets out is not unique. I have dealt with the case of a gentleman who was arrested for having a store of arms—including sub-machine-guns—and was bailed, because the police were not aware that the bail hearing was going to be heard. The police did not turn up to the hearing, as they did not actually know about it, and so the judge bailed the gentleman. He went on to commit a further offence, and when the police went to arrest him, he attacked them with a samurai sword. It is quite clear that this is not an isolated case, and I was as frustrated as my hon. Friend was to find out that no action was taken against that judge, because there is no action that can actually be taken against judges in such circumstances.

Helen Goodman (Bishop Auckland, Labour)

I am grateful to my hon. Friend for his intervention, which demonstrates that this unfortunately is not a one-off episode, and that we do need to address both the performance of the members of our judiciary and the rules that apply in these circumstances. My amendment seeks to address the issue of rules, and I hope that the Minister will do something about the judiciary.

The amendment gives the prosecution the right to appeal to another Crown court judge in a case in which the prosecution believes that remand to prison is warranted. It does not require the submission of further evidence. It does require that such an appeal be lodged speedily. That is important: we are not seeking a massive increase in the number of appeals. Rather, in very serious cases, in which there are high levels of violence and risk to victims, there should be a right of appeal. I hope that the way in which we have set this out achieves that aim.

If the Minister wants to tell me that my amendment needs some drafting improvements, and that he wants to take it away to address it and come back on Report, that would be very helpful. He knows that this is an  issue across the House—the hon. Member for Pendle (Andrew Stephenson), for example, has promoted a ten-minute rule Bill on the issue. The Minister knows how serious this is. He knows that there is a problem. I very much hope that he will give us a sympathetic response.

Robert Buckland (South Swindon, Conservative)

I want to make some very brief remarks, and to echo the tributes to Mr and Mrs Clough and their family, who have not only attended today, but also gave evidence to an all-party inquiry on the law about stalking, which was expertly chaired by the right hon. Member for Dwyfor Meirionnydd. I am grateful to the Clough family and to others who gave evidence to that inquiry. The intervention by my hon. Friend the Member for Broxtowe, which was addressed by the hon. Member for Bishop Auckland, raised a very important point. The question of the assessment of risk is a vital issue, which needs to be addressed not just by courts but by all agencies which are involved in the prosecution and monitoring of serious and serial offenders. That is the real mischief here, and it needs to be dealt with, in order to address the proper concerns raised by the Clough family and others.

I strongly support a change in the law to allow an appeal against a decision to grant bail. However, I take issue with how the amendment is drafted, although the intention is entirely right, as to allow an appeal from one Crown court judge to another puts that Crown court judge in an appellate capacity over someone of equal status. That is a difficulty. If the amendment is drafted so that it would be an appeal to a High Court judge, that difficulty is cured. I strongly advocate that approach, as it would make the position clear. The High Court judge would be the appellate judge on a decision on granting bail. There would be no question of one judge of equal seniority second-guessing another. The prosecution would then be put on an equal footing with those defendants who have the power to appeal to High Court judges against the refusal of bail.

There is an anomaly, which this tragic case has illustrated. It is very sad that we have to be here to learn from a tragedy such as that experienced by the Clough family to look to a proper amendment of the law. I urge the Minister to look carefully and expeditiously at this matter and to introduce an amendment that would allow the prosecution to be on a genuinely equal footing with the defence when it comes to decisions to grant or refuse bail in the Crown court.

Elfyn Llwyd (Dwyfor Meirionnydd, Plaid Cymru)

I, too, am aware of the tragic and harrowing circumstances of this case. I add my voice to those members of the Committee who have spoken. I agree with the hon. Member for South Swindon that the only flaw in the amendment is that it would be hugely embarrassing for one Crown court judge to oversee another Crown court judge’s decision. It is a small amendment, and it would be helpful.

Given the circumstances and the bravery of the Clough family in coming to give evidence to our stalking inquiry, as well as attending today, which cannot be easy, we owe it to them and to many other people—alas, it is not a unique case—to look seriously at this right of appeal. I urge the Minister, as the hon. Member for Bishop  Auckland has done, to take the amendment away and look at it and incorporate the addition to which the hon. Member for South Swindon has referred. There will only be a dozen or so cases per annum, perhaps fewer, but there is an anomaly and a flaw, and we need to close that gap.

Philip Hollobone (Kettering, Conservative)

Order. Given the level of public interest, I remind the Committee that, our present session adjourns at 1 o’clock.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

Every member of the Committee who has spoken has paid tribute to the parents of Jane Clough, and I want to join in that. The way in which they have conducted themselves in bringing this issue to our attention, based on the awful and tragic experience that they went through, is to be commended. Of course, when one looks at hard cases, they provide the most graphic example of when things have gone wrong in our system. Even so, we are required to look carefully at the case for changing the procedures. I hope that my remarks will bring satisfaction to the Committee as well as to the Cloughs.

I pay particular tribute to my hon. Friend the Member for Pendle for his presentation of the case to the House through the vehicle of a ten-minute rule Bill. We have discussed the issues subsequently. As hon. Members will know, this point was made at Justice Questions in the House. My right hon. Friend the Minister for Policing and Criminal Justice made it clear that we were giving the matter consideration and were not in a position to say what the outcome would be. I may be able to say a little more in responding to the debate.

I have obviously looked at the case extremely carefully, and I wish to dissociate myself from the criticism of the judiciary made by the hon. Member for Bishop Auckland. It was not appropriate. I studied the transcript carefully and, clearly, everyone concerned with the matter wishes that a different conclusion had been reached. However, there are lessons to be learnt, not simply that a judge flew in the face of reason. The hon. Lady’s criticism was not appropriate. Other flaws in the process need to be dealt with, and they have been taken in hand by the Crown Prosecution Service.

However, we are still left with an issue of principle: should there be an appeal in respect of the decision of a Crown court judge not to remand someone in custody? One of the issues with which we must deal if we instigate an appeal process is at what level we end it. The hon. Lady conceded when introducing her amendment that it would be inappropriate for the decision of one Crown court judge to be referred to another Crown court judge as part of the appeal process. If the High Court were then to examine an appeal process, which would be the obvious next level, do we create a process whereby there needs to be an appeal from that judge up to the Court of Appeal and then to the Supreme Court? We need to know where the balance properly lies. We must remember that Crown court judges conduct murder trials. They have serious responsibilities in our system, and we are considering appeals against a decision by a judge with significant responsibility.

I have drawn attention to a matter of principle. The Government have considered it, and we now wish to accept the thrust of the amendment and indeed that of  the ten-minute rule Bill proposed by my hon. Friend the Member for Pendle, with whom we will now properly engage in details about resources and practicality to draft the necessary amendments in fit shape to put on the statute book at an appropriate time. I can only express my hope that that will take place during our proceedings on the Bill. I cannot give the Committee an undertaking, but we are working towards it.

Helen Goodman (Bishop Auckland, Labour)

Can the Minister commit himself to ensuring that such action happens within the legislative vehicle that we are discussing? The Bill will be discussed on Report in a fortnight. It will be debated in the Lords and the Government can table amendments to it. No doubt, changes will be made and it will return to us. The Minister should be able to commit to making amendments to the Bill, the deadline for which is Easter, in six months. The Government are putting through many other changes. Everyone agrees that such matters are important. I hope that the Minister will use this legislative vehicle to take such action.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

Obviously, I have already asked the necessary questions to inform a precise decision about when to take action, such as in how many cases it would apply, and how many appeals in respect of such decisions we would be likely to see.

Robert Buckland (South Swindon, Conservative)

Not many.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

I hope that will be so. Regrettably, I am not sufficiently certain of the precise impact, so I do not know what court processes would be required for a High Court judge to be in place fast enough. If a Crown court judge bails someone and the Crown Prosecution Service subsequently requests for that person to go into custody, how long should he be in custody before a High Court judge is made available? What processes would be required?

The hon. Member for Bishop Auckland has made suggestions in her amendment that are a perfectly reasonable stab at achieving our aim, but I must ensure that processes are available to underpin measures such as those proposed. I am happy to assure the Committee that we are earnestly engaged in that exercise, but we want a system based on proper data and on proper estimates of the number of times that such a facility would be used by the Crown Prosecution Service. I wish I were in a position to give the Committee such estimates now, but I am not, so I cannot provide absolute certainty. I hope that my concession of the principle of the case satisfies the Committee, my hon. Friend the Member for Pendle and, not least, the parents of Jane Clough. They have made their case, which the Government have accepted in principle. We will try to find the means to put the proposal in place.

Dave Watts (St Helens North, Labour)

The Minister claims that when he looked at the case that we have been discussing, he found out that it was not only the judge who was at fault, because he lacked the information needed to ensure that he made the right decision. In his proposals, will the Minister deal with such weaknesses?

As I said, in my own experience, someone who had a violent past—who had committed a serious crime and owned a hoard of guns and knives, which was discovered  when his house was raided—was bailed because the police and other agencies did not provide the judge with the information for him to make the right decisions. In addition, will the Minister consider how judges gather information to ensure that they have all the information required to make the right decision?

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

As the hon. Gentleman would expect, the specific agencies involved with the Crown Prosecution Service have looked carefully at what happened in the that case and changed their procedures to address what they believe was the weakness. I understand that those employed directly by the Crown Prosecution Service will now deal with all such applications.

The hon. Member for Bishop Auckland referred to the case of a complaint against a judge. Disciplining judges is for the judiciary and, given the independence of the judiciary, that matter is absolutely not something on which a Minister would wish to comment. I understand, however, that there is no complaint against that judge, but we will double-check to ensure that I have been correctly advised. If that is not so, I shall write to the hon. Lady.

I hope I have made it clear that the Government have been convinced by the case made by my hon. Friend the Member for Pendle and by all those who have contributed to the discussions in Committee. We must ensure that we properly administratively discharge my commitment to the principle, which I hope the Committee will welcome. I understand that the hon. Lady wants the proposal to be included in the Bill; so do I. If we include it, however, we must proceed properly and effectively without mashing up the administration and leaving problems, such as people being remanded in custody for too long when a Crown court judge has sought to release them on bail.

Karl Turner (Kingston upon Hull East, Labour)

I think the Minister said that all such applications will now be made by employed barristers and, I suspect, solicitors of the CPS. If he said that, it worries me, because it suggests that independent members of the Bar are less persuasive than employed members of the CPS. Surely that is not what he meant.

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

I hope that the hon. Gentleman, as a member of the Bar, will take it from me that that is not what I meant. However, the CPS has considered the processes in the case. Undoubtedly, such occasions will occur, and however wonderfully talented independent members of the Bar are, if they pick up briefs at short notice without having completely grasped the case, they might not do quite as well as they ought. He shakes his head—of course, that could never conceivably happen.

However, as far as the tragic Clough case is concerned, I am content that the agencies involved have, very properly, examined what happened carefully and taken the appropriate decisions in light of that tragic experience. The Government are happy to accept those administrative actions internally, but the question of whether an appeal from a Crown court judge, in the way that the hon. Member for Bishop Auckland described, is appropriate remains open. We are happy to agree the principle, but now we want to go away and ensure that we can satisfactorily put it into a process.

Helen Goodman (Bishop Auckland, Labour)

On that particularly dreadful case, I remind the Minister that the judge was advised by the police and the CPS that he should not grant bail due to  the severity of the crimes. At that stage, the man was being prosecuted for attacking Jane Clough, so the notion that the judge was unaware of the accusations does not stand up.

However, I am grateful to the Minister for agreeing to the principle, and I am pleased that he accepts that we need to even up the legislation to allow a right of appeal in principle. I accept that he cannot just take my amendment as it is drafted. I am sure that he will do his best to put such a provision into the Bill in some form. During further consideration of the Bill in this House and in another place, Labour Members will question Ministers to ensure that that happens within the next six months. I beg to ask leave to withdraw the amendment.