Report (5th Day)

Part of Legal Aid, Sentencing and Punishment of Offenders Bill – in the House of Lords at 8:30 pm on 20th March 2012.

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Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Labour 8:30 pm, 20th March 2012

My Lords, this group of amendments would remove the Government's proposed amendments to the Bail Act 1976. The Government's amendments remove certain exceptions to the presumption that bail should be granted to a defendant. Currently, bail can be withheld if judges or magistrates believe that the defendant will commit offences on bail, not turn up for subsequent court hearings, or interfere with witnesses. The Government seek to replace that with a no real prospect of custody test to make it far more likely that low-level offenders will get bail. Of course, currently the vast majority of low-level offenders already get bail.

The Government's proposed changes are poorly thought through and could, in some cases, have the reverse effect to the one they intend. I understand that they are motivated by looking at the statistics of those who have received community sentences after they had been remanded in custody and then convicted at trial. They believe, in my view wrongly, that they will reduce costs by reducing the number of people who were originally remanded in custody.

I have come up with three practical examples which I believe will undermine the object of the Government's proposed changes and the premise on which they are based. My first example is that of a sentencing bench. A sentencing bench sits and decides to give a community sentence where a defendant has previously been remanded in custody before trial. The sentencing court will know that, if it gives a prison sentence for a low-level but imprisonable offence, it is very likely that the defendant will walk free on the day of the trial or very shortly afterwards.

However, if the sentencing bench gives a community sentence, there is an opportunity for ongoing intervention by the probation service either through a tailored programme for drug rehabilitation, unpaid work or any of a number of courses that they can make. Of course, it is true that a court will be much better informed when it is giving a sentence than when it is making a decision about bail. I believe that it is misleading-and the Government are misleading themselves when they do so-to look at the bald figures of those who have been remanded in custody and those given community sentences.

My second example is of interfering with witnesses. I acknowledge that in another place an exception has been made in the context of domestic violence. I also accept the point made by the noble Lord in Committee when he said that interfering with witnesses is an offence. However, what about this following scenario: a neighbourhood dispute in which a bailed defendant is accused of interfering with witnesses and pleads not guilty? Of course, there will need to be a trial on the matter, but in the mean time the question of bail arises again. Surely the Government cannot be saying that the court cannot take into account a previous conviction of interfering with witnesses. That absolutely undermines everything that they are saying about putting victims at the heart of the criminal justice system. I find it impossible to imagine that they really intend that very real scenario.

My third example is perhaps the most common and concerns prolific low-level offenders. As the noble Lord will know, magistrates deal with this type of offender all the time. It is the most common type of offender we deal with. Currently, most of these offenders get bail if they plead not guilty. However, if an offender knows that he is not going to get bail, he is less likely to plead guilty. On several occasions, I have had a defendant in front of me who has pleaded not guilty. We have then gone through the bail process and, for whatever reason, bail has been refused, at which point he turns around and changes his plea to guilty. In this example, this would of course increase the costs and have precisely the reverse effect to that which the Government are trying to achieve.

By definition, prolific low-level offenders know the system. They know whether they are likely to get bail or not and they will plead accordingly. They will not be that concerned about the prospect of getting another conviction on their record, but they will be concerned about the prospect of not getting bail. In this scenario, it is likely that the reverse effect will have happened. I understand that bail is an emotive issue. It is in itself interesting that the only group that is lobbying on this subject is the Magistrates' Association. So far as I know, no other lobby group has taken it up. It is actually quite easy to come up with the various scenarios that I have outlined. The more you pick at this issue, the easier it is to unravel the Government's case.

My main objection is not one of principle; it is one of the practical effects of this change in bail policy. The Bail Act 1976 has now been in place for a long time. There have been various amendments down the years, but the Act as a whole is well understood and it works reasonably well.

I have some questions for the noble Lord and I hope he will be able to answer them before I decide whether to bring this matter back at Third Reading. The first question relates to the riots in August, when the importance of magistrates' discretion to withhold bail was shown. Is the noble Lord satisfied that the courts could respond with equal robustness if the proposed changes were enacted? Secondly, it is not clear whether the no real prospect of custody test applies to the offence or the offender. Can previous Bail Act offences be taken into account and used as a reason for withholding bail? Thirdly, if the no real prospect of custody test is satisfied, it would appear that the electronic monitoring of bail conditions such as curfew would not be available as the court has to be satisfied that, without the electronic monitoring requirements, the person would not be granted bail. Is this a correct interpretation? I hope it is not. My fourth and final question is about the very beginning of the remand process. It has been a long-held practice that bail need not be given if there is insufficient information about the defendant, usually concerning their address. Is the noble Lord really saying that a court could lose this discretion in the future? I would find that very surprising.

I have asked four specific questions, although I have been sent many dozen more by the Magistrates' Association. However, in the mean time, I beg to move.