House of Commons Hansard Debates for 2 Jul 1993

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will, if enacted, give the prosecution the right to appeal against a court's decision to grant bail might draw some comfort from the fact that the system has been shown to work well in a part of the United Kingdom.

I make no apology for spelling out what powers the Bill and the amendment would endow on the prosecution. The defendant will be held in custody while the prosecution and defence prepare their arguments for the appeal hearing. There are strict limits on the time that the accused will be in prison pending the appeal. We should recognise, however, that the Bill will, in principle, deprive someone of his liberty who has already been granted bail by a court. I believe that from the outset the House has accepted the consequence, which was evidenced by the support for early-day motion 1134, which was tabled on Wednesday 13 January and signed by more than 100 hon. Members. That support is a measure of the concern throughout society about the problems of offending on bail. My hon. Friend the Member for Sutton and Cheam vividly drew our attention to some horrendous incidents. I congratulate my hon. Friend the Member for Shoreham on introducing a Bill which addresses an element of that concern--the need for a safeguard against decisions to grant bail that, in the past, have had serious and, at times, tragic consequences. That is not to say, I hasten to add to my hon. Friends, that the 500,000 bail decisions that are made each year in magistrates court are under suspicion : they are not. The Government have great respect for members of the community who are willing to play a part in the administration of justice by becoming magistrates. They are called on to make many judicial decisions, of which bail is perhaps the most difficult. At that stage of the proceedings, they will know little of the offence, the circumstances under which it was committed or the person alleged to have committed it.

The public have expressed concern that the granting of bail in inappropriate circumstances has brought bail and the courts into disrepute. That point was put to me by the hon. Member for Cardiff, South and Penarth (Mr. Michael) two days ago. I replied that, if bail was abused, it should not be granted, and I hope that he agrees with that.

The Bill provides a safeguard that will ensure that where the prosecution has objected to bail, but it is granted by magistrates, the prosecution will be able to apply, in certain circumstances, to a Crown court judge to rehear the arguments for and against bail. I listened to my hon. Friends' concern that High Court judges are removed from the face of the Bill by the amendment. The initial inclusion of High Court judges was a genuine attempt to provide as large a pool as possible of appellate judges so that appeals should never be delayed for want of a judge to hear them.

It was pointed out in another place that if an appeal over bail is made to the High Court and legal aid is applied for, it has to be on the basis that it is civil, not criminal, legal aid that is made available. Criminal legal aid can be granted by the courts whereas civil legal aid is available only from the Legal Aid Board. Assurances were offered on behalf of the Legal Aid Board that if an application is made for civil legal aid for the defendant to be properly represented before a High Court judge hearing an appeal, it will be granted over the telephone and, if necessary,

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retrospectively. But those assurances were not enough to satisfy the concerns that were voiced in another place about whether such legal aid would be made available in sufficient time.

As, in practice, the vast majority of such appeals would have been heard before a Crown court judge anyway, and in the light of concerns about legal aid, it seems right that the issue has been resolved by removing the words "High court or" from the Bill. It means not that the High Court will not continue to take a close interest in the operation of all aspects of the bail process, but rather that the appeals will be best brought on quickly and efficiently before a judge of the Crown court. Judges will, I am sure, be able to hear such appeals before the start of the day's court business and will want to do so in order to reduce as far as possible the time spent in custody by the defendant.

In this context, it may be right to refer to the views expressed by the Lord Chief Justice--I assure the House that he has been consulted, although with less time for deliberation than we would have wished--on the introduction of a prosecution right of appeal via the Bill. He came back to the Government on one point in particular : to ask that everything possible is done to ensure that defendants spend as little time as possible in prison, pending the hearing of the appeal. To that end, the Lord Chancellor's Department proposes to consult the judiciary with a view to providing guidance to the effect that, in cases where the time limit would, but for the formula provided in the Bill as it now stands, expire on a Saturday or a public holiday, everything possible should be done to expedite the hearing. If that proves impossiblssed by the Lord Chief Justice, on being consulted about the prosecution right of appeal, that everything should be done to avoid the necessity of defendants being held in custody for long periods. Lord Taylor said that if the appeal is launched just before a weekend or bank holiday he would expect it to be heard wherever possible on the same day.

My hon. Friend the Member for Bromsgrove (Mr. Thomason) asked about the criteria for granting bail. The Bail Acts already set out the criteria to be applied when considering the granting of bail. The bail process projects which were set up last November are considering ways of ensuring that feedback of decisions made in higher courts reaches magistrates. In addition, the Judicial Studies Board review of training, commenced in 1992 by the previous Home Secretary, should lead to much greater standardisation of those decisions.

My hon. Friend, the Member for Bromsgrove also asked about prison accommodation. The right of appeal will of course be used only in rare cases. The Government are satisfied that the increase in the number of remands in custody will be small and can be accommodated within the present prison system.

We may deal with the question of guidance when debating a later amendment, but I can say now that we intend that there shall be guidance for Crown prosecutors so that they may know the special circumstances in which they would raise the right of appeal. That may reassure hon. Members who may be concerned that the right of appeal will be raised in frivolous or unnecessary cases.

In the light of my comments, I hope that my hon. Friends will be satisfied that my hon. Friend the Member

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for Shoreham (Mr. Stephen) has not only introduced a good Bill but that this amendment is eminently sensible and should be supported. Question put and agreed to.

Lords amendment : No. 2, in page 1, line 13, at end insert ("(1A) 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 class or description of person as may be prescribed for the purposes of this section by order made by Secretary of State.")

Mr. Stephen : I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker : With this, it will be convenient to discuss Lords amendment No. 7.

Mr. Stephen : These two amendments are taken together because they deal with the question of who should be allowed to appeal on behalf of the prosecution. When the Bill left this House, it would have been possible for a private prosecutor to appeal and possibly--although it would have been rare--for the right of appeal to be used vindictively--and that a defendant could have been held in prison for a maximum of 48 hours. That was clearly not desirable and was not intended. I am, therefore, happy to accept an amendment to restrict the right to appeal to a public prosecutor.

Lords amendment No. 2 defines a public prosecutor as a prosecutor who acts on behalf of the Director of Public Prosecutions or "a person who falls within such class or description of person as may be prescribed for the purposes of this section by order made by the Secretary of State."

The reason why paragraph (b) of the amendment is in its current form is that it is not possible in primary legislation to define all the classes of person who may from time to time be prosecutors acting on behalf of the public. At present, one can think of prosecutors who prosecute on behalf of Customs and Excise, the Inland Revenue, the Serious Fraud Office, the Department of Trade and Industry and many others. As Governments change over the years, those agencies may also change and it is, therefore, necessary to provide power by statutory instrument to prescribe who shall be a public prosecutor for the purposes of the Bill. That is covered by Lords amendment No. 7. I have no difficulty in accepting the amendments, and I commend them both to the House.

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Mr. Thomason : It would be helpful if the Minister could tell the House which bodies he would consider appropriate to be included within paragraph (b). For example, will that well-known body the Serious Fraud Office, which seems to command the headlines at the moment, be one of those which should properly be included? Will the income tax authorities also be appropriate, or does the Minister believe that, initially, inclusion should be restricted to the Director of Public Prosecutions as mentioned in paragraph (a) and perhaps the Crown Prosecution Service which, by implication, is presumably included in paragraph (a)?

I wish to make it clear that I in no way oppose the amendments, both of which appear to be entirely

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appropriate and reasonable. It is clearly essential that no vendetta should be pursued in terms of someone seeking to incarcerate an accused person unnecessarily by virtue of a private prosecution. I hope that my hon. Friend the Minister will be able to confirm that, in a wider sphere, the Government will take action to discourage persons from reoffending while on bail. It would be helpful for us to know that the Government are examining various issues of similar nature and perhaps we could be given guidance to help us to determine our response to the amendments.

Lady Olga Maitland : I welcome the amendment. As my hon. Friend the Member for Bromsgrove (Mr. Thompson) rightly said, it is extremely important that when a man's liberty is at stake he does not become the victim of a vendetta. It should be clearly specified that it is for the Crown Prosecution Service to pursue an appeal.

It must be said that in Committee the reference to the prosecution was rather woolly, and it is appropriate that it should be clarified.

The difficulty with private prosecutions is that a tremendous amount of emotion is involved. I am thinking of the people who come to my surgeries and who are outraged about a small car accident--two bumpers can cause more anguish than anything else. If people get to the stage where they feel that a custodial remand is appropriate, the matter could spin out of control, so it is proper that we should be clear in our own minds that it is the Crown Prosecution Service which controls this aspect.

I rather wish that the right of appeal by the Crown Prosecution Service already existed. I will tell the House of an incident which happened only on Monday. A juvenile offender, a member of my Sutton burglary posse, was put into a Glasgow secure unit, well away from his family and Friends. He managed to wriggle out of the unit by claiming that he had been sexually harassed. His lawyers pleaded that it was unfair for him to remain up there. With the assistance of social workers, he was transferred to another unit further south and nearer his home, and--surprise, surprise--he absconded en route. We must have strict controls of custody and we must ensure that they are safe.

It is, therefore, appropriate that the Crown Prosecution Service should follow the matter through. It should not be up to private individuals to bring prosecutions which could spin out of control and turn into a vendetta. I welcome the fact that my hon. Friend the Minister is coming to my constituency to meet the police and the community and to hear about their grave concerns at first hand.

Mr. Booth : I shall make a comparatively narrow point. I should be grateful if my hon. Friend the Minister would address this point when he winds up. About £3 billion to £4 billion worth of property is lost annually through shoplifting. I do not know the exact proportion, but I know that a very substantial proportion of cases are handled through private prosecutions. It is not a question of private vendettas being pursued by rich individuals bringing private prosecutions. The prosecutions are brought by well-known stores such as Marks and Spencer and C and A in Oxford street. Many hon. Members know about such cases.

The stores pursue cases involving great values. The important point is that they remove a grave burden from the Crown Prosecution Service by bringing private

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prosecutions. Are those private prosecutors, who bring a series of cases to court, to be unable to benefit from the Bill? I hope that the use of statutory instruments under Lords amendment No. 7 will address that point. I hope that my hon. Friend the Minister will tell me that the issue will be addressed. Some £3 billion to £4 billion worth of property is involved. The cost of prosecuting is currently borne by the private sector. We do not want that burden to be shifted to the taxpayer as a result of lack of consideration of the Bill. I hope that my hon. Friend will address that issue.

Mr. Luff : I am not used to catching the Chair's eye as rapidly as I did on the first occasion on which I spoke this morning and I should like to correct a discourteous omission. I did not pay a sufficiently fulsome tribute to my hon. Friend the Member for Shoreham (Mr. Stephen) for introducing the Bill. My slightly churlish remarks about narrowing the scope of the Bill were not intended to be a criticism of him. I pay tribute to the way he has responded so pragmatically to the concerns expressed so that his Bill can make rapid progress. Casting my eye across the Chamber, I express the hope that that pragmatism may be mirrored later to enable us to make rapid progress on another important Bill.

I find it my duty, once again, to play the role of devil's advocate. I suspect that I shall not bring my devil's advocacy to its logical conclusion by voting against the amendments. However, I am once again concerned that we seem to be narrowing the scope of the Bill so that it can make progress. To summarise, here we go again. I have two reservations about the amendments, which deal with the question of who can appeal against the granting of bail. I am concerned about whom the statutory instrument will define and the method by which we choose to define who may appeal against the granting of bail. I shall deal first with the question of the legal persons who will be able to make the appeal. We should go back to the fundamentals of the Bill.

I understand that those who are rightly concerned about civil liberties have four principle anxieties about granting anyone the right to appeal against bail. The first is the civil rights implication of holding an unconvicted person in custody by an order of the Executive against a judicial decision. We can all imagine people's worries about that. The amendment would confer almost exclusively on the Executive the right to appeal against a judicial decision, so the concern is not addressed in it.

The second matter, which the House should be sure it is incorporating into legislation, is the time limits for appeal. We have all agreed that the limits must be long enough to allow adequate time for a rehearing to be arranged and prepared, but that they must limit the time in which the defendant is held in custody. The amendment does not address that anxiety, so the House need not concern itself.

The third concern about the prosecution right of appeal, which is relevant to the amendment, is that the power might be used for offenders who do not represent a risk of serious harm to the public. I have heard what my hon. Friends have said about the nature of the offences that might be involved, such as neighbourly disputes, which led to the anxiety in another place that the right under the Bill could be used capriciously by individuals. I

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do not share that anxiety, because the offences covered by the Bill are so tightly drawn--too tightly drawn, I submit that that concern is not relevant. The charges that could be brought capriciously against individuals for whom bail could be refused would relate to more modest offences which are not covered by the Bill.

Mr. Thomason : Does my hon. Friend agree that there may be cases where a neighbour discovers, for example, that the person living next door has a history of crime? He might make serious allegations that would be covered by the Bill. He might seek for reasons of retribution the incarceration of that person under the Bill by making an application. We all know how bitter neighbourly disputes can be. Someone could seek to use the provisions. Will my hon. Friend reconsider his point? It is surely appropriate that private prosecutions should be excluded from the Bill.

Mr. Luff : My hon. Friend anticipates my speech. I shall deal with the matter later and if my hon. Friend feels that I have not dealt with it sufficiently, he will, I am sure, intervene.

The fourth concern that the civil rights lobby might have about the prosecution right of appeal is that an extra hearing would increase delays in criminal proceedings. I understand that point, which reflects the point which my hon. Friend the Member for Bromsgrove (Mr. Thomason) expressed. As he said, people might be incarcerated unreasonably because the criminal proceedings are protracted. We must satisfy ourselves that the amendments are appropriate to address that concern.

I do not believe that we should be unduly concerned on two and half of those counts about who is given the right to appeal against the granting of bail, but we must be concerned on the fourth count, for the reasons that my hon. Friend the Member for Bromsgrove has suggested. We should satisfy ourselves that we are granting the right people the right to appeal. The risk is that deliberate delays may be created by individuals who hold grudges against others. However, is that a real concern? I have already used the word "capricious" to describe the fears of their Lordships. I believe that there are two grounds on which we should consider the possibility of reintroducing private prosecutions into the Bill.

I have already given my first reason for such a reintroduction. It relates to the relatively narrow offences that would generally concern neighbourly disputes. The second is a rather broader concern, which has been expressed in the media recently, about the reduction in the number of prosecutions being brought by the police. We have seen reports about the growing number of cautions which the police are issuing against alleged offenders. In those circumstances, private individuals may increasingly wish to bring serious prosecutions, on good public order and safety grounds, against people who have committed the kind of offences described by my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland).

12 noon

Because of the concern about the rising tide of cautions and the falling number of prosecutions, individuals may wish to bring more serious charges than has hitherto been the case and against people who may be in danger of causing serious harm to the general public if they are not held in custody. We must satisfy ourselves about the amendment to exclude the right of private appeal.

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Mr. Thomason : Is not my hon. Friend making the point that I made earlier? If the number of private prosecutions increases, which he believes might occur in view of the difficulties to which he has referred, it follows that the opportunities for abuse are, therefore, that much greater. If more people seek private prosecutions, there is a greater possibility that the mechanisms available in the Bill will be abused by people seeking to pursue personal vendettas. Does not my hon. Friend believe that the limitations that the Bill imposes on private prosecutions are very appropriate?

Mr. Luff : My hon. Friend is right. Once again, he has anticipated the flow of my argument. If we are to grant the denial of the right of a private individual to pursue an appeal against the granting of bail, the general public must be satisfied that their safety is not being put at risk by that perceived increase in the number of cautions rather than prosecutions being brought by the police. The public must feel that they have no need to bring such prosecutions. I hope that my hon. Friend the Minister will assure me that we can feel comfortable with granting that right of appeal, in the light of that very understandable concern that the public are likely to have in the light of media reports.

With regard to who has the right of appeal, as opposed to how we define who has the right of appeal, how close does the amendment mirror practice in Scotland? Who is defined in Scottish law as having the right to appeal? I fully accept that there is no need for total convergence between Scottish and English law. Such a task is probably beyond the intellectual capacity of the House and the current position reflects traditions dating back many hundreds of years. However, it would be a perceived injustice if such a right for a private individual to appeal existed in Scottish law, but not in English or Welsh law.

With regard to amendment No. 7, I am concerned about the mechanism by which individuals or legal bodies, which are given the right to appeal, are defined. Must we proceed by way of a statutory instrument? Would it not be better to insert in the Bill a simple provision along the lines, "such persons as the Secretary of State may, from time to time, determine"?

Conservative Members believe very strongly in the principle of deregulation. Wherever possible, deregulation should apply to the law as much as to the business of government or commerce. Would it not be an easier and more flexible mechanism to allow the Secretary of State simply to determine, on a pragmatic and day-to-day basis, who should have the right to appeal? That would save parliamentary time, which is a precious commodity.

That idea may commend itself to the spirits on the Conservative Benches who do not favour the ever-encroaching jungle of regulation in matters of law and in business and commerce. I hope that my hon. Friend the Minister will be able to reassure me on those points.

Mr. Matthew Banks : Like my hon. Friend the Member for Worcester (Mr. Luff), I congratulate my hon. Friend the Member for Shoreham (Mr. Stephen) on introducing the Bill. I would particularly like to take this opportunity to congratulate him on his flexible approach. He was right to believe that he should be as flexible as he was in Committee to ensure that the Bill reached the statute book. I hope that my hon. Friend the Minister will respond to the latter part of the remarks made by my hon. Friend the

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Member for Worcester. We are discussing these amendments because far too many young offenders reoffend while on bail. It is significant that research undertaken by the Northumbrian police shows that an overwhelming number of offences of burglary and car theft have been carried out by a very high percentage of young offenders while on bail. It is, therefore, entirely right that powers should be available to appeal against the granting of bail.

However, that right should be strictly controlled and not abused. As my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) said, effectively to deprive someone of his liberty, contrary to the judgment of a magistrate, is a significant step. However, bearing in mind the current situation, such legislation and provision is absolutely essential.

Amendment No. 2 restricts the right of appeal to prosecutors acting on behalf of the Director of Public Prosecutions. I believe that that means the prosecutors of the Crown Prosecution Service. However, other people may prosecute serious cases in which a right of appeal against decisions to grant bail might be appropriate. For example, it might occur in cases brought by Customs and Excise or the Serious Fraud Office.

Amendment No. 7 will allow the Secretary of State to prescribe by statutory instrument which other prosecutors should have a right of appeal. My hon. Friend the Member for Worcester referred to deregulation. I hope that my hon. Friend the Minister will be able to make it quite clear that the means by which the amendment seeks to list such prosecutors will work satisfactorily and effectively. That list of prosecutors must be capable of being readily amended. I hope that the Minister will make it clear how, if he wants to amend that list, he proposes to do that. I hope that he will make it clear that such amendment could be scrutinised by Parliament.

It is vital that the amendments are incorporated in the Bill. As I said earlier, I hope that my hon. Friend the Minister will be able to ensure, following on from the excellent pilot schemes--five of which I am aware of- -in relation to investigations into the way in which decisions are taken on the granting of bail, that we can use the Bill to crack down on people who are granted bail too readily and, sadly, given the opportunity to reoffend very quickly.

Mr. Eric Pickles (Brentwood and Ongar) : I did not intend to speak on this matter, but, following the remarks of my hon. Friend the Member for Worcester (Mr. Luff) about amendment No. 7 and whether a statutory instrument is an appropriate way to define the list of prosecutors, I join my hon. Friends in congratulating my hon. Friend the Member for Shoreham (Mr. Stephen) on bringing this important Bill before the House.

Instinctively, I support any suggestion of moving towards deregulation--it is sensible and I am politically committed to it--but I recognise that many regulations represent the very fabric of a civilised society. They reflect the way in which an individual is taken care of and protected by the state. However, this important Bill takes liberties from the citizen. We have heard of the dreadful cases that caused the Bill to be brought forward, but there is another side to the matter where, an offender having been granted bail, the prosecution decides to appeal.

We have heard from my hon. Friend the Member for Bromsgrove (Mr. Thomason) some very persuasive reasons about why the list should not be available to

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everyone. The list is important, and we must guard it. If we have a duty, it is to protect the rights of the citizen. We should not allow the rights of the House to scrutinise who should be on the list to be given over lightly.

No matter how benign, good-natured, diligent or vigilant the Secretary of State is with regard to the protection of the rights of the citizen, the rights of the citizen should be protected by the House. We should have an opportunity to object to the kind of prosecutor who would be on the prescribed list. I hope that, no matter how persuasive and coherent the points made by my hon. Friend the Member for Bromsgrove, the Minister will resist the suggestion that the House should not decide who should be on the list.

Mr. Maclean : This has been an important debate on a very important amendment. One of the concerns expressed about the prosecution right of appeal as contained in the Bill is that it offered no limitation on the sort of prosecutor able to launch the appeal or the circumstances in which the appeal might be brought. It has never been the Government's intention-- nor has it been that of my hon. Friend the Member for Bromsgrove--to see all sorts of petty offenders swept up under this right of appeal. I should, therefore, like to link the limitation on the type of prosecutor, which has been addressed by the amendment tabled by Lord Bethell in another place, with reassurances about the limits on the types and circumstance of offence that will see this right of appeal brought into action.

The amendment specifically addresses the limit on the type of prosecutor who has the power to bring those appeals. The point of the amendment addresses other concerns, in particular about the circumstances in which the appeal is brought and the time limits of the appeal. The amendment makes it clear on the face of the statute that the right of appeal against a decision by a magistrate to grant bail is limited, and rightly limited, to certain types of prosecutor, principally those of the Crown Prosecution Service. That will ensure control and supervision over the bringing of those appeals, which I am sure all hon. Members will welcome.

Not only will the launching of appeals be controlled but, because there exist in the Crown Prosecution Service degrees of experience and seniority, appeals will be vetted to ensure that those which are eventually brought before the courts are well founded. Any that are not well founded and yet still brought before the courts will very quickly become the object of the judicial displeasure of the circuit judge hearing the appeal. The high standards that the Crown prosecution sets itself will ensure that that is guarded against.

Mr. Thomason : Will my hon. Friend confirm that decisions about appeals will be made at a relatively senior although local level within the Crown Prosecution Service? I am concerned that there is a danger of delegation to relatively junior prosecutors who might not have the experience or the wisdom of some more senior members who might take a wider view.

Mr. Maclean : On the face of the Bill, the decision to appeal needs to be made orally on the spot. It is not possible to refer it upwards to a very senior prosecutor. But the Crown Prosecution Service has made it clear that it would want to look at that decision as soon as possible

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and, where practicable, make sure that, before the appeal is confirmed, it has been looked at by as senior a figure as possible. However, I would not like any suggestion--I am sure that my hon. Friend did not mean this--that Crown prosecutors are not capable of making that important judgment. There is always a temptation to want such decisions to be made by the person at the very top. That is not administratively possible ; nor is it necessary. I take the rather tough view that if someone is good enough to be a Crown prosecutor and if that person is good enough to decide to drop appeals, he or she should be good enough to decide to prosecute or proceed with an appeal. Of course, there will be guidance to help prosecutors to come to the right decision on making an appeal in the appropriate circumstances.

The amendment gives, on the face of the statute, the power of appeal to the day-to-day prosecutors of the Crown Prosecution Service. My hon. Friend the Member for Bromsgrove was concerned that other organisations might be included as well as the Crown Prosecution Service itself. We intend that there shall be some other organisations included, and I assure the House that we will carry out with the authorities concerned full consultation on which other bodies should be prescribed.

12.15 pm

At present, the likely bodies are the ones that my hon. Friend suggested-- for example, Customs and Excise. My hon. Friend will agree that it is terribly important for such an organisation to be included, because it prosecutes some of the most dangerous classes of criminal it is possible to imagine--for example, those involved in international drug-trafficking. Those who are brought before the courts often have links with other countries and often have resources salted away overseas and are a pretty nasty, violent bunch of people. Such people have a tendency to intimidate their associates, they have an attachment to violence, and the House would agree that, when Customs and Excise officers fear that a defendant might abscond or obstruct the course of justice, it would be right for them to have that right of appeal. Other organisations that could be considered are, of course, the Inland Revenue and the Serious Fraud Office, which deal with major fraud cases. Of course, we would want to consult on the list before coming to the House with it.

It is important that Parliament has the proper opportunity to scrutinise the list and examine all those potential prosecutors, and object if necessary. There is also the advantage that should the list of prosecutors need changing from time to time, primary legislation would not need to be changed ; we would propose to do that by statutory instrument.

The powers contained in the Bill have brought some unease to some quarters. I do not consider that unease to be well founded, for the Bill offers a safeguard against the sort of decisions which, in the past, have brought tragic consequences and about which there is grave public concern. The amendment limits the prosecutors who will have the power of appeal against bail decisions to those whom I have described and over whom there is proper control. On that basis, I consider it an improvement in the Bill.

I am sorry that I have to disappoint my hon. Friend the Member for Finchley (Mr. Booth) and my hon. Friend the Member for Worcester (Mr. Luff), who made a very

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well-argued speech and said that private prosecutors should be reinserted. The Bill does not allow appeal by any prosecutor, other than the CPS or those prosecutors who will be designated by the Secretary of State. That is an important safeguard to ensure that the power is not exercised lightly and is properly regulated.

ogise unreservedly to my hon. Friend the Member for Bromsgrove for my appalling memory lapse--I could not remember his excellent constituency of Bromsgrove a few minutes ago. I said that we will have guidelines for the Crown Prosecution SerM Mr. Booth : Will my hon. Friend give way?

Mr. Maclean : I shall give way in a moment. It is important, therefore, that we do not lightly extend the right of private prosecution to other individuals, even to the most respectable and best shops in the country.

Mr. Booth : Would my hon. Friend at least consider the nub of my point, which is not necessarily that private prosecutors--even those for grand stores such as Marks and Spencer--would have the right of appeal in the circumstances of the Bill? In the light of the gravity of the shoplifting situation in Britain, would private prosecutors be allowed, at the point at which the appeal has been refused, to be associated with the Crown prosecutor who is on duty in the magistrates court or to bring forward their own police evidence which is always associated with such private prosecutions? Would the Department consider whether the police could be associated with an application?

That matter needs some consideration. I have not formulated a solution in precise detail, but the issue needs to be addressed because it is important for a number of major stores. I remind the Minister that this often relates to a long series of offences, not simply the trivial theft of a packet of cigarettes.

Mr. Maclean : I listened carefully to what my hon. Friend said. I am not clear about what he means when he asks whether I will allow the Crown prosecutor to be associated with the appeal. I assume that he means that we would permit a system whereby the private prosecutor could go to the Crown Prosecution Service and say, "Will you take up this case for us and will you use your right of appeal against a case where we think it should be done?" My hon. Friend rightly said that some consideration would be required before we could contemplate making that move.

We must also bear in mind that we want the right of appeal to be exercised in serious cases. The Crown prosecutor would need to be careful about over- exercising his right of appeal in shoplifting cases, regardless of how aggravating or annoying they may be or how much theft is involved. The magistrates courts and the Crown court need to consider carefully whether they wish to keep people in prison in shoplifting cases as opposed to more serious cases involving violence against the person. I am not suggesting that shoplifting is not serious.

Giving private prosecutors the right to appeal will not necessarily mean that more people who are charged with shoplifting will be kept in prison over night. I will certainly consider what my hon. Friend said. Perhaps he will agree

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to write to me, or the organisations involved will flesh out their concerns and ideas so that we can consider them properly. It might be appropriate for the Secretary of State to designate prosecutors acting on behalf of bodies or organisations. Any proposals to extend the power to other bodies would need to be subject to close parliamentary scrutiny. The House would want and expect to scrutinise any list of alternative prosecutors. My hon. Friend the Member for Worcester asked about the Scottish legal system--who the prosecutors were and whether private prosecutions were allowed. Of course, the Scottish legal system is different from our system south of the border. In Scotland, all prosecutions are conducted by the procurators fiscal and they alone have the right of appeal.

My hon. Friends the Members for Worcester and for Southport (Mr. Banks) said that the Secretary of State should decide who should have the right to appeal. I have already covered that matter, but I emphasise that the power of appeal is a significant one which can result in a defendant being granted bail by magistrates and being held in custody at the instigation of the prosecution. It is a serious matter when someone who has been granted bail is then denied his right to liberty at the instigation of the Executive. Therefore, it is important that Parliament should have the opportunity to consider those to whom the power should be extended. We envisage an order subject to negative resolution. We all know that if Parliament is content with the Secretary of State's proposals, we do not need to waste parliamentary time. However, if any hon. Member is concerned, there is an opportunity for debate.

I wish to deal with the limitations that will be set on this power of appeal--the limitation on who will have the power to bring the appeal and the limitation on the circumstances in which it can be brought. We all agree that appeals against the grant of bail should be brought only in the most exceptional cases, not simply when the prosecutor disagrees with the magistrate's decision. Mere satisfaction should certainly not be enough. It is intended that this power will be used only in rare cases in which there is a serious public interest. My hon. Friend the Member for Finchley may say that shoplifting is a matter of serious public interest.

There have been attempts to draft an amendment that sets a test higher than that in the Bail Act and yet is comprehensible to the courts. We have not found a satisfactory amendment to date and, if the Scottish experience is anything to go by, I do not think that we shall find one. For the Crown Prosecution Service, we plan to follow the formula that provides that the procurator fiscal must abide by guidelines giving detailed advice on the circumstances in which an appeal may be brought.

It is important for hon. Members to understand why the decision has been taken not to accept on the face of the statute a test of, say, serious risk to the public. That ground was debated in Committee between my predecessor- -my hon. Friend the Member for Fylde (Mr. Jack)--and Labour Members. The same arguments apply now as then. We must have a right of appeal that will apply when a person has been charged with serious offences and the prosecutor believes that there is good reason to suppose that the defendant will abscond. We must have a right of appeal that will allow serious threats to property to be guarded against.

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The guidelines intended to be used by the Crown Prosecution Service will in the first place make it clear that the Crown Prosecution service foresees that the number of places in which it will exercise the right of appeal is small. The broad effect of the guidelines is that the right of appeal will be used only in cases of greatest concern where there are substantial grounds under the Bail Act on which the court could refuse bail.

Prosecutors will apply an over-arching test of whether there is a serious risk of harm to members of the public or other significant public interest grounds. The public interest grounds will not be used to justify appeals in minor cases. In making their assessment, prosecutors will take into account the seriousness of the offence. Examples of such cases might include offences of violence where weapons are used, serious sexual offences where there is an element of violence and serious arson cases.

My hon. Friend the Member for Bromsgrove asked me what action will be taken to stop people from offending while on bail. That is a serious matter. The Government share the justified anxiety about offending on bail and they are committed to action. Our aim is both to prevent such behaviour and to punish those who disregard the law and abuse the trust placed in them by the courts by offending when they are let out on bail.

12.30 pm

In addition to introducing legislation that will make offending on bail an aggravating factor for the purposes of sentencing, in the past 18 months we have introduced a package of practical measures to combat the problem. An additional £8 million over the next three years has been provided to fund bail hostels and bail support schemes, the better to supervise those on bail and to improve the training given to magistrates on bail decisions. We will ensure that bail notices make clear the penalties that people will face if they offend on bail.

One of the most important of the recent initiatives is the establishment of five action research projects tasked with finding ways of improving the bail process. The hon. Member for Cardiff, South and Penarth (Mr. Michael) told me only two days ago that that was exactly what was needed. I have news for him. One of the projects set up last autumn operates in Newport.

Accurate and up-to-date information is crucial to every bail decision. Therefore, we have asked that the projects should focus on the quality and quantity of information. The action research is intended to result in best practice guidelines for those involved at every stage of the bail decision and in particular to highlight ways of helping the court to make the necessary risk assessment for each defendant.

My last point in response to the anxiety of my hon. Friend the Member for Bromsgrove about those who re-offend on bail is that a national bail issue steering group has been established to bring together senior representatives of justice agencies and other organisations with an interest, including the Association of Chief Police Officers, the Bar Council, the Law Society, the Association of Chief Officers of Probation, the Justices Clerks Society and the Magistrates Association to encourage inter-agency work. Therefore, I hope that my hon. Friend will be satisfied that a programme of action has been established to deal with those who offend on bail.

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I hope that I have satisfied my hon. Friends that the amendment is sensible and should be accepted.

Mr. Stephen : I am grateful for the constructive and positive speeches that have been made by hon. Members in the debate on this group of amendments. My hon. Friend the Member for Finchley (Mr. Booth) was worried about private prosecutions. However, private prosecutions are not normally brought for the serious cases to which the Bill is intended to apply. I have never intended the Bill to apply to small thefts and other minor offences, even though they may come within the category of offences set out in clause 1(1). Nevertheless, there may well be circumstances in which, by reason of the persistence of the shoplifting or other circumstances, it is inappropriate for the person to be released on bail. In those circumstances, I hope that, perhaps prior to the hearing, the retailer or other private prosecutor would speak to the Crown Prosecution Service to enlist its support, and that if necessary the CPS would take over the case and itself appeal against the granting of bail. I hope that that will satisfy my hon. Friend the Member for Finchley.

My hon. Friend the Member for Worcester (Mr. Luff) drew attention for the second time to the narrow scope of the Bill. I share his concern that the Bill had to be so narrowly drawn, and I hope that he will understand that in a private Member's Bill and especially a ten-minute Bill, if one seeks to achieve too much, one will achieve nothing.

I am particularly sorry that I had to drop clause 2 of my Bill which, while it did not shift the burden of proof in bail cases generally, would have focused on people who had previously committed offences while on bail. It would have let such people know that if, in future, bail, was considered, it would be for them to prove that they should have bail, rather than, as now, for the prosecution to prove that they should not have bail.

I give notice to my hon. Friend the Minister now that if those provisions or something similar are not included in the Government's Bill which I hope will be introduced in the autumn, I and other hon. Members will move amendments to ensure that the matter is taken into account. We want to make it more difficult for persistent bail offenders to obtain bail in the first place.

My hon. Friend the Member for Worcester also mentioned civil rights. He was right to do so. But we must consider the civil rights not only of the person who is arrested but of all those people who are the victims of crime committed by people on bail. I have sought to strike a fair balance in the Bill between the civil rights of the arrested person and those of the public.

My hon. Friend was right to draw attention to the increasing use of cautioning instead of prosecution. That also causes me anxiety. If the reason for it is that it is thought that there is an insufficiency of prison places, that is not a good reason for proceeding by way of caution. There may well be good reasons for giving a caution, but that is not one of them. We could easily decrease the prison population by repealing the Theft Act 1968, but no one would wish to do that. I believe that it is the first duty of any Government to protect their citizens against internal as well as external attack, and if prison places have to be made available to accommodate those who are a danger to society, such places must be made available.

The cost to the taxpayer has been referred to. Of course it is costly to the taxpayer to keep someone in prison. I am

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