Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 863 - 878)



  Q863  Chairman: We are most grateful to you for coming. We know how difficult it is to fit in arrangements for coming to these committees. Can you explain to the committee the bases on which judges decide whether or not to award bail? In the inquiry that we have had so far we have been concerned at the number of people on bail who committed offences while on bail. We have had a number of witnesses who are the relatives of victims of those crimes, and therefore the role of the judiciary has obviously become of importance to this committee.

  Mr Justice Fulford: Just before I answer that question, can I ask whether there is particular emphasis in terms of your interest on those who are granted bail in serious cases and in particular for murder or is it just generally?

  Q864  Chairman: There will be questions particularly on that. Could you set the scene generally as to the conditions on serious crimes first?

  Mr Justice Fulford: There is an approach to bail which is the same for all case in that the Bail Act lays down in clear terms, consistently with the jurisprudence of the European Court of Human Rights, that bail shall be granted unless there are substantial grounds for believing that the accused will fail to surrender, will commit an offence on bail, will interfere with witnesses or obstruct justice. The judge considering an application for bail will have that test pre-eminently in his or her mind. Against that background, there will be the need for the judge to be given sufficient information in order to make a decision. In the vast majority of cases that will be done by the advocates on both sides, providing the court with what is needed for the decision, but particularly with serious cases there may well be a stage in the application when evidence will be given, and particularly as regards the prosecution, from an officer in the case who is in a position to give chapter and verse to the judge in relation to the three factors that I have just outlined.

  Q865  Margaret Moran: You will be very well aware of the case in my police authority, Bedfordshire, involving Garry Weddell and the absolute astonishment that bail was given in both that case and the terms upon which it appears bail was given, which seem to have been extremely lenient. Perhaps you would like to reflect on that. On the general question of murder, is it the case that there are increasing grants of bail in murder cases? What are the trends and why?

  Mr Justice Fulford: May I say, first of all in relation to the original part of your question, as you will be aware, it would be inappropriate for me to comment on the facts of a particular case. I have to ask you to forgive me if I do not address that. In terms of a suggestion that there is an increasing trend or some kind of presumption for granting bail in murder cases, that is most certainly not my experience, nor the experience of the senior judiciary. Bail applications in murder cases are dealt with always either by High Court judges or by circuit judges of real experience and a decision in a murder trial to grant bail will be taken very, very seriously indeed, usually following more than one hearing—it is possible it will be dealt with at one hearing—and with the judge focusing with very great care on the three elements that I have just outlined. There is no presumption at all that bail, particularly in murder cases, is going to be granted. The standard approach which I outlined at the beginning will be followed with particular rigour.

  Q866  Mr Winnick: There has been a freedom of information request which showed that 79 out of 462 alleged murders had been committed by a defendant who was on bail. I do not know what offences were involved where bail was given but it is alarming, is it not, that for the most serious of all crimes, murder, 79 out of 462 had been committed by someone who had been given bail?

  Mr Justice Fulford: When a judge is considering whether or not to grant bail in a case, one of the things that he needs to look at is whether or not there is a risk that the defendant will go on to commit an offence whilst on bail, and so that is something that is going to be very much in a judge's mind. However, unless you are going to withhold bail from everyone who is charged with an offence, there will always remain a risk that somebody who has been granted bail is going to go on to commit a further offence whilst on bail. I think it needs to be underlined, though, as a matter of real importance, that there is a difference between someone being granted bail for a relatively minor offence who then, wholly unpredictably, goes on and commits a serious offence such as murder—that on the one hand—and the other situation where somebody who has is charged with a very serious offence. If that is the case, it is of course far less likely that they will be granted bail so that they are going to be in a position to go on to commit an offence of the kind of seriousness that this committee is considering this morning.

  Q867  Mr Winnick: Many people find it very difficult to understand how someone who is charged with murder—obviously everyone is innocent until found guilty and without dealing with that particular case which caused such concern and I am leaving that aside—nevertheless in general can actually be given bail, with all the dangers that a further very serious crime of murder or some other such serious crime could be committed.

  Mr Justice Fulford: I entirely understand that, Mr Winnick, of course as a general proposition but one has to look at the individual facts of individual cases. Just to take theoretically as an example when you have for instance mercy killings where a partner in a marriage has been involved in a death in those circumstances, it may be felt by the judge looking at it that that was, if it was murder which is yet to be resolved by a jury, so specific to the particular facts of the case that there is simply—

  Q868  Mr Winnick: That is very exceptional. Recognising that and even though I said people are very concerned, such people presumably would accept what you have just said. Leaving aside allegations of mercy killing and the rest, where the person is being charged with murder in ordinary circumstances and being given bail, one would have thought the court should consider very seriously and more seriously, would I be right in saying, than what has been the position up to now?

  Mr Justice Fulford: More seriously than the position up until now? Mr Winnick, I can only repeat in reply to that really what I said earlier; it is only judges of real seniority who deal with these applications. It is self-evident to any judge dealing with an application of this kind that there are very, very serious considerations indeed in play. One needs to scrutinise with very great care the individual facts of the particular case. To pick up on what you have just said about an ordinary case of murder, I fear no such case exists; they are all very different and one needs to look with particular care at whether on the facts as revealed to the judge there is a substantial risk that the defendant, if granted bail, will go on to commit a further offence.

  Q869  Bob Russell: When real judges are looking at these serious cases for bail, do they take into account the court of public opinion?

  Mr Justice Fulford: In a sense I would hope not, although of course we are all human beings living in the real world reading newspapers. When the judge sits down to decide on a particular application, he or she will look at the test, will look at the facts, and will make a decision as to whether or not there are substantial grounds for withholding bail.

  Q870  Bob Russell: While accepting that every murder case is different, and I accept that point totally, will you ensure that the statistics that Mr Winnick quoted will be drawn to the attention of all judges so that they may dwell on that?

  Mr Justice Fulford: It is not for me to say what statistics should be brought to the attention of judges who consider cases of this kind. I would in fact have a high degree of confidence that the judges who do deal with these cases will be aware generally of that kind of statistical background.

  Q871  Bob Russell: I am grateful because until today I was not. How much are judges able to take the views of the police into account in making bail decisions?

  Mr Justice Fulford: I am relieved to say to a very high degree. Particularly with cases of this kind where judges are going to be looking at the facts with extra care, you would expect a senior officer in the case to attend on the application. Certainly within my experience very often the officer will be called into the witness box to give evidence about some of the more pertinent issues in relation to whether or not bail should be granted. The views of the police are a pre-eminent consideration in relation to these applications.

  Q872  Ms Buck: Further to that and specifically, the police have told us that they sometimes have particular problems because of offenders on bail having a tendency to commit spree offences because of the time constraints. Is that particular issue of capacity of the police to monitor bail offenders taken into consideration at any point?

  Mr Justice Fulford: I am not sure if I entirely follow the question.

  Q873  Ms Buck: Police witnesses have told us that there is a particular burden on them on occasion of monitoring defendants on bail. It is not a question of police opinion; it is a question of the police workload. That is the dimension.

  Mr Justice Fulford: Yes, the ability of the police where appropriate to monitor a defendant on bail is something that a judge properly can take into consideration. If you outline the conditions that you have in mind and the police say, "It will be impossible for us to monitor that defendant", then it may be that either you are going to have to find other conditions or bail will not be appropriate. Resource issues most assuredly can and do come into play. Electronic tagging is a very good example of this. That is a method by which defendants can effectively be placed under house arrest, but you would want maximum reassurance that the equipment is going to function and that all of the necessary back-up is there to deal with any suggested breach of the tagging conditions.

  Q874  David Davies: It has been suggested that somebody who has been arrested and is being prosecuted and is facing a prison sentence will feel quite comfortable about going out and committing a series of offences, knowing that if convicted of any further offences, once they have gone back to court and been sentenced and gone to prison, they will not face any sanction for any offences committed on bail. Is that a fair summary of the current situation?

  Mr Justice Fulford: I think it would be a very grave misapprehension if a defendant were to feel that committing offences whilst on bail was not going to lead to any longer sentence or lengthier punishment for them. It is a significant and substantial aggravating feature that should be reflected in the ultimate overall sentence that is handed down. If there is any misconception along those lines, we need to work harder to make sure the message goes out that there will be substantial additional penalty for that kind of behaviour.

  Q875  Patrick Mercer: Do you believe that tagging orders can be an acceptable alternative to bail?

  Mr Justice Fulford: I believe that tagging can be an extremely useful tool. Without going into particular cases, I have used it on a number of occasions when, if it had not been available, I probably would not have granted bail. Because I was able effectively to ensure that the defendant would remain under house arrest, I was in those circumstances sufficiently reassured that there would be no problems having granted bail. Mercifully, my hope was in each case borne out and the defendant remained within the precincts of his house.

  Q876  Martin Salter: It has been said that prison contains the mad, the bad and the sad and that only the middle one should be there. The former Home Secretary has called on judges last year to jail only the most dangerous of persistent criminals owing to lack of prison places. Has that informed the conduct and the thinking of judges? Have they felt pressure as a result of both the situation with regard to prison places and the comments of the former Home Secretary?

  Mr Justice Fulford: There are two issues here really: one is on sentencing and the other is in relation to bail. On sentencing, the position is absolutely clear that judges when passing sentence are effectively to ignore such things as the overall prison population, save to the extent that if you are going to an overcrowded prison it is arguable that the punitive element is going to be greater than it would be if you were going to a prison that has an appropriate number of people inside it. To that very limited extent, it can be taken into consideration on sentencing. As far as bail is concerned, it is an irrelevance. If you are dealing, for instance, with bail and murder, you are not going to be influenced as to whether or not you grant bail by the fact that there may be an overcrowding problem. It is simply is not going to come up over the horizon as an issue realistically that you are going to be facing.

  Q877  Mrs Cryer: At the moment the Ministry of Justice is conducting a consultation regarding the allowing of bail for those charged with murder. Do you have a particular view on the aspects of the consultative document that has been put out? There are a number of options there.

  Mr Justice Fulford: There are and I am afraid the senior judiciary are going to be putting in in the near future a formal response to this and it would be inappropriate for me in any way to impinge on the results of the work that is being done by the Rose Committee. However, so as not do duck your question entirely, can I simply say this. The 1976 Bail Act in the form that it currently is in is the result of a process of evolution. It has incorporated all of the main elements of European human rights law. Therefore, given the very clear issues that a judge needs to scrutinise with great care when deciding whether or not to grant bail, there is a real question over whether in fact change is needed and whether the case for change evidentially has been made out, but whether or not there is a need for change as far as the judiciary is concerned will be answered in the near future by the Rose Committee when they put in their response to the consultation document. It really is not for me to say.

  Q878  Mr Winnick: Sir Adrian, it is not entirely a matter, is it, for the judges, as you have been explaining, because the section which caused some difficulty, section 25 of the Criminal Justice and Public Order Act, gave flexibility to a large extent to judges so that bail could be refused for alleged very grave offences. That was considered to be in conflict with the European Court of Human Rights and therefore section 25 was considered to be not in compliance with the European Court of Human Rights, so it has been dropped. To a large extent judges are restricted, are they not, on whether or not bail should be given?

  Mr Justice Fulford: Mr Winnick, I fear I must beg leave to differ. You have said that section 25 gave greater flexibility. In fact, the decision of the House of Lords was that in reality it did the opposite. By restricting bail in particular cases to those situations that were considered to be exceptional, it was felt that that overly fettered the judge's opportunity to look at each case on its merits. The House of Lords decision in the O case has simply been that rather than limiting the grant of bail in those cases to exceptional circumstances, the judge must be free to look at everything that is relevant to whether or not bail should be granted and then make a decision. So I think it is the other way round.

  Chairman: Sir Adrian, may I thank you on behalf of the Committee—we know how very busy you are—for fitting us in for this evidence session.

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