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8.15 pm

If the Government get their way, however, and clause 56 remains in the Bill, it will be possible for a convicted murderer or rapist to be allowed out on bail when charged with a similar offence in the future. That is the purpose of clause 56.

We do not seek to criticise custody sergeants or magistrates in general or suggest that they are incapable of taking decisions about bail. They exercise such powers regularly and do so with considerable care and diligence. However, misjudgments do arise, wrong information is given, and there can be misunderstandings.

Mr. Mike O'Brien: The hon. Gentleman says that misunderstandings may occur in such circumstances. Can he give me one example of any case before 1994 which is on all fours with what he is proposing and where such a thing has occurred?

Mr. Greenway: I said that I was not going to repeat all the arguments that were made at the time of the 1994

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legislation. The point is that Parliament accepted that strengthening protection in such cases was necessary. However, the Minister anticipates the point that I was about to make which clearly justifies the need for caution.

The number of cases in which rapists on release from prison subsequently attack other women--or in which people convicted of murder or, as is often the case, of manslaughter, subsequently kill again--surely indicates that any known offender in these categories who is subsequently arrested and charged with a repeat offence should not be granted bail. That is the only approach that achieves total consistency and the complete elimination of risk. That was the purpose of the 1994 legislation. As I said, in Committee the Minister could not say where there had been any difficulty with that. We believe that in order to ensure the complete elimination of risk and to achieve total consistency there should be an absolute bar to bail in such cases.

It may be argued that there could be cases in which it might be wrong--I think the Minister tried to advance this argument in Committee--to remand in custody someone facing trial for a second homicide offence if, for example, he was previously convicted of manslaughter which might have involved negligence behind the wheel of a car or negligence in failing to fulfil a professional duty. On the other hand, such a case would not proceed without compelling evidence. A custodial sentence would follow conviction, which tends to suggest that the balance of the argument should be to remand in custody. Such cases would be very rare, and the phrase used in the Bill--"exceptional circumstances"--could well be more liberally interpreted. Only time would tell.

What is much more likely is that, based on an unreliable, if not erroneous, assessment of an individual's mental state or preponderance to reoffend, someone who would pose a serious risk to the community would be granted bail and released. What are we to say to a victim's family when someone on bail kills someone else or commits rape? It is no good relying on the benefit of hindsight to conclude that a wrong decision was taken. The harm that has been caused cannot be reversed.

Those difficult and important issues require Parliament to balance the rights and freedoms of individuals with those of society. In our judgment, that balance is best struck by leaving the law as it stands. The bar to bail for defendants convicted of homicide or rape, when subsequently charged with a similar offence, is surely the minimum protection that the public should expect the law to provide. I invite the House to support the amendment to delete clause 56.

Mr. Mike O'Brien: The hon. Gentleman's argument relies on the fact that Parliament made a decision on a previous occasion and that it was wrong for Parliament to reconsider the issue. That goes against the basic constitutional principle of one Parliament not binding another. I put that argument aside. Parliament is entitled to reconsider the issue.

The Labour party argued against the introduction of the provision in the Criminal Justice and Public Order Act 1994. We continue to believe that it is bad law and against the interests of justice. We have every confidence in the ability of the police and the courts to make the right decision in such cases, just as they could before 1994. We are unaware of any example of bail having been granted

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in such a case. We were mindful then, and remain aware, of public concern about some bail decisions. The decision should remain with those in possession of the full facts, but the public must have confidence in the process.

We are not repealing section 25 of the 1994 Act; we are improving it. Ordinarily, there is a presumption that bail will be granted unless there are substantial grounds to believe that the defendant will abscond, commit an offence or obstruct the course of justice. In the absence of such grounds, the defendant must be released on bail. Clause 56 reverses that general presumption. The presumption will be that the defendant is taken into custody. The burden will be on the defendant to show that the circumstances of his case are exceptional and justify his release on bail. We do not expect many, if any, defendants to overcome that hurdle.

There are also existing safeguards to insure against any unacceptable risk to the public as a result of the judicial discretion that we are proposing to restore. First, there is the reversal of the presumption in favour of bail. Secondly, the Bail (Amendment) Act 1993, which applies to cases involving any offence attracting a maximum penalty of five years or more in prison, gives the prosecution a right of appeal to a Crown court judge against a magistrates court decision to grant bail. The defendant must be kept in custody pending the outcome of the appeal. Thirdly, the Bail Act 1976 says that if a defendant who has been charged with any such offence is granted bail and representations have been made that he should be denied bail, the court must state its reasons for granting bail and cause those reasons to be included in the record of the proceedings.

The new provision allows some flexibility to prevent injustice, ensures that the protection of the public remains a primary concern and provides a tough additional safeguard against bad bail decisions in particularly serious cases. I shall give an example of an exceptional case--such a case has not happened yet--in which we might want to consider bail.

Let us consider a doctor who had a previous conviction for manslaughter as a result of euthanasia. He had turned up on all previous occasions while on bail and there was no reason to believe that he would not turn up on bail. A condition of bail when charged with a second offence could be that he should not practise as a doctor, so there would be no danger to the public and nobody would think that there was. There would be every reason to believe that he would not break that bail condition. Would the hon. Member for Ryedale (Mr. Greenway) say that the courts and the police should not be able even to consider bail? The public would want to think carefully. An American doctor, whose name I forget, was involved in similar circumstances.

I am not saying that bail should be granted in such cases, but, if there are exceptional circumstances, we should trust the police and the courts to decide whether bail is appropriate. Despite what the hon. Gentleman says, this is about whether we trust the police and the courts. For decades, they have had the power to grant bail. No one has provided evidence of any case in which they could not be trusted. The Tory party has made itself the party that has no trust in the police or in our courts. The Tories are stirring up fears that the public face killers, murderers or rapists on the streets. They seem to believe

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that the police will irresponsibly release such people. They are stirring up those fears with no evidence and great irresponsibility.

The hon. Member for Ryedale shakes his head. During his speech, he was reasonable. However, he has issued a press release that says:

That is not what he said this evening, but he has put out that statement to the press and the public. That is an irresponsible statement which could stir up fears among the public. If he is serious, he should not make such flagrant attempts to create fear on our streets. The fear of crime is bad enough. A responsible Member of Parliament should not put out such statements. He knows perfectly well that we shall not do anything of the sort. We are trying to make young offenders accept responsibility for their bad behaviour. I hope that the hon. Gentleman will withdraw his irresponsible statement.

No serious commentator has said that we cannot trust the police or the courts to make the right decisions in such cases. The safeguards are there. The Tories should stop undermining trust in our police and our courts, and stop making wild claims designed to stir up fear on our streets. We are dealing with a serious issue. The hon. Gentleman's press statement does not treat it with the seriousness that it deserves.

Mr. Greenway: Well, we really have touched a nerve. The Minister has made three statements that make our case. First, he said that the situation has not arisen yet. The Government have failed miserably to demonstrate any reason why the 1994 Act should be amended. The fact that the circumstances have not arisen underlines our concern that, if the bar to bail is removed, it will be possible for someone previously convicted of homicide--or, more probably, of rape--to reoffend again if granted bail.

I made no criticism of the police. I went out of my way to point out that the police do a very good job and do it with diligence. A decision on exceptional circumstances might be taken by a court rather than a custody sergeant. Who knows what the circumstances would be? Our clear view is that there should be a bar as the best means of protecting the public. That is why we implemented the provision in the 1994 Act.

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