SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS
(a) In future, we would expect all Government
departments to make Explanatory Notes available on the first day
that a Bill is published and, at the very least, well in advance
of Second Reading (paragraph 9) .
Amendments to PACE (Part 1)
(b) We welcome the provisions for street bail
(Clause 3) , for the use of telephones for review of police
detention (Clause 4) and repeal of the requirement to
record detailed particulars of a detained person's property (Clause
6) . These appear to us to be sensible measures to reduce
unnecessary police bureaucracy, without impinging on the rights
of the accused (paragraph 15) .
(c) We do not think that the Home Office has
made out a convincing case for extending the detention time limit
to 36 hours for non-serious arrestable offences. In our view,
there are alternative—and more appropriate—measures
in the Bill (such as conditional bail) which will help to alleviate
any problems with the existing time constraints. For these reasons,
we recommend that Clause 5 be deleted from the Bill (paragraph
23) .
(d) We strongly recommend that Clause 7 of the
Bill be amended to preserve the existing procedures—which
include Parliamentary approval by affirmative resolution—in
the following circumstances: first, where a Code is being established
for the first time and secondly, where revisions of substantial
importance or significance are made to the Codes (paragraph 30)
.
Bail and Charging (Parts 2 & 4)
(e) We fully support the proposal to impose a
'treatment' condition on the bail of drug misusers. It is essential
that sufficient resources are made available for the provision
of treatment. We look forward to hearing from the Minister as
to his proposals for making appropriate treatment more widely
available for purposes of Clause 16 (paragraph 40) .
(f) We accept that a power to impose conditions
on bail before charge is a necessary and logical part of the move
towards charging by the Crown Prosecution Service. However, we
would expect this power to be used only where necessary and preferably
to avoid detaining a suspect. We recommend that the Association
of Chief Police Officers should draft and circulate appropriate
guidelines (paragraph 46) .
(g) While we welcome the safeguards provided
in Schedule 2, in relation to pre-charge conditional bail, we
are not convinced that they are sufficient. We therefore considered
the following suggestions, which were put to us by our witnesses:
—a strict time limit on the length of conditional
bail before charge;
—a requirement that the decision to impose
conditions is taken by a police officer not below the rank of
Inspector;
—a requirement that the officer has "substantial
grounds" for believing that the conditions are necessary
for the specified purposes;
—a right of appeal with access to public
funding (paragraph 48) .
Time limit
(h) As presently drafted, we believe the Bill
gives rise to a risk that onerous conditions may be allowed to
run indefinitely. For this reason, we would prefer to see a time
limit included in the primary legislation, rather than left to
the custody sergeant when imposing the conditions. We agree with
John Burbeck, of the Association of Chief Police Officers, that
four weeks would be a reasonable time limit and recommend that
the Bill be amended accordingly (paragraph 51) .
Police Officer not below the rank of Inspector
(i) We believe that the custody sergeant is an
officer with an appropriate level of experience for the responsibility
of imposing bail conditions before charge because, unlike detention,
conditional bail requires the consent of the prospective defendant
(paragraph 54) .
"Substantial grounds for believing"
(j) We are not convinced that a stronger requirement
(such as "substantial grounds for believing") would
make any significant difference to police bail decisions in practice
(paragraph 56) .
Public funding for appeal
(k) There may, therefore, be a case for extending
the provision of public funding to suspects before charge (paragraph
58) .
Disclosure (Part 5)
(l) We welcome the proposal to apply a single
and objective test at both stages of prosecution disclosure (paragraph
62) .
(m) We recommend that the Bill be amended so
that, where the prosecution wish to interview a defence witness
in advance of trial, they should be required to notify the defence
and offer to interview the witness in the presence of the defence.
We further suggest that any interview be tape-recorded (paragraph
71) .
(n) We would prefer to see a provision of this
nature be included in the Bill, rather than left to codes of practice.
Arguably, defence witnesses require extra protection to ensure
equality in this context. In contrast to most defendants, the
police and prosecution have vast resources at their disposal with
which to apply pressure to defence witnesses, if it minded to
do so (paragraph 72) .
(o) We welcome the Government's decision to narrow
its original proposal to require defendants to disclose unused
expert reports. Under Clause 30, defendants will only be
required to disclose the name and address of experts instructed
by him for possible use at trial. We have no difficulty in principle
with the revised proposal, as it is less likely to raise issues
of privilege (paragraph 74) .
(p) While we accept the need for Clause 30, we
are not convinced that the measure will work in practice (paragraph
78) .
Trials on indictment without a jury (Part 7)
(q) We welcome the Government's decision to retain
the defendant's right to elect jury trial in either way cases
(paragraph 80) .
(r) We believe that the right to trial by jury
should be preserved unless there are cogent reasons for conducting
the trial without a jury (paragraph 82) .
(s) We accept that there may be cogent reasons
for dispensing—in some cases—with a jury in a complex
financial case. In particular, the length of these cases can place
a significant burden on the jury system which, in turn, may reduce
dramatically the pool of available jurors. This (arguably) undermines
the principle of random selection on which our jury system is
based. However, such cases should not be used to undermine generally
the jury system which has served well justice in this country
(paragraph 89) .
(t) We therefore accept that the prosecution
should have a right to apply for a trial without a jury. Furthermore,
we are satisfied that the defendant's interests are protected
adequately by the provision of a right of appeal (paragraph 90)
.
(u) We do not see why a defendant, who is tried
on indictment, should not have the option to waive his
right to a jury trial, subject to the conditions specified in
the Bill. In our view, the proposal offers the potential for a
quicker and cheaper form of trial without affecting adversely
the defendant's interests. For these reasons, we welcome the proposal
to allow a defendant to apply for a trial without a jury (paragraph
96) .
(v) We accept that there are cogent arguments
for dispensing with a jury trial where there is a real and present
danger of jury tampering (paragraph 99) .
(w) We invite the Government to consider the
merits of repealing section 8 of the Contempt of Court Act 1981,
in order to permit meaningful research into how the jury system
operates (paragraph 101) .
Double jeopardy (Part 10)
(x) We welcome the provisions of Part 10, which
are broadly in line with our predecessors' recommendations for
reforming the double jeopardy rule (paragraph 107) .
Evidence of bad character (Part 11, chp 1)
(y) We have some difficulty with the proposal
to allow the defendant's similar previous convictions to be automatically
admitted at trial. In the light of the Oxford Study, we believe
that these provisions could lead to miscarriages of justice in
some cases. In particular, we are concerned at the prospect of
using a defendant's previous record to prop up what might otherwise
be a weak case. We are also concerned that this will increase
the temptation for the police to pursue the "usual suspects"
(paragraph 116) .
(z) We agree that propensity for misconduct should
not justify automatic admission of the defendant's bad character
(paragraph 119) .
(aa) We are concerned at the apparent inequality
between the tests for admitting the defendant's bad character,
as compared with a non-defendant's bad character. At the moment,
a lower test of relevance seems to apply to defendants than to
non-defendants. In our view, there should be a standard test requiring
the bad character evidence to have "substantial probative
value" in relation to a matter in issue, which is itself
of substantial importance in the context of the case as a whole
(paragraph 122) .
(bb) For the reasons given, we recommend that
Clauses 84 to 92, which relate to the admissibility of a defendant's
bad character, be deleted from the Bill. (Paragraph 123) .
Hearsay evidence (Part 11, chp 2)
(cc) In our view, oral testimony given in court
is the generally the best form of evidence. We therefore welcome
the Government's proposal to preserve the general exclusionary
rule against hearsay evidence, with the modified exceptions provided
under chapter 2 of Part 11 (paragraph 127) .
(dd) We agree with the Law Commission's view
that "cross-examination...should be dispensed with only where
it is necessary to do so". We therefore share its concern
about the effect on the hearsay rule of Schedule 2 to the Criminal
Procedure and Investigations Act 1996. We invite the Government
to take this opportunity to repeal the offending paragraphs of
Schedule 2 to the 1996 Act, as recommended by the Law Commission,
or to explain its reasons for not doing so (paragraph 129) .
Magistrates' sentencing powers (clauses 137-138)
(ee) We are concerned that the proposed increase
in magistrates' sentencing powers will only inflate the prison
population unless it is implemented after the Custody Plus
scheme is rolled out (paragraph 136) .
Possible additions to the Bill
(ff) If the Government is serious about its commitment
to banning the practice of payments to witnesses in active criminal
proceedings, we would invite it to seize this opportunity to introduce
the necessary legislation (paragraph 142) .
(gg) We believe that there is a case for extending
the reporting restrictions, which preserve the anonymity of victims
of sexual offences, to persons accused of those offences. In our
view, there are grounds for distinguishing this category of crime
from other crime. First, "this is an area where there is
a possibility of mistakes being made" and secondly, the damage
to those who are never charged, or subsequently acquitted, can
be permanent. We invite the Home Office to consider the merits
of such a reform by way of amendment to the present Bill (paragraph
145) .
(hh) We invite the Home Office to consider whether
further safeguards are needed to deal with the dangers of hearsay
evidence of an unrecorded cell confession (paragraph 148) .
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