Examination of Witnesses (Questions 863
- 878)
TUESDAY 15 JULY 2008
SIR ADRIAN
BRUCE FULFORD
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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