Mr.
Garnier: We now move on to a different aspect of the law
and bail procedure, which can be simply described. Amendments 218 to
222 simply seek to add to murder other offences, including attempted
murder, manslaughter, rape and attempted rape. The amendments therefore
add a further list of offences that the court should be wary of when
granting bail. The default position would be that a person will not get
bail if they have been charged with one of those offences, whereas that
is not necessarily the case at the moment.
12
noon We
further expand our thinking in relation to those sets of offences by
our new clauses 22 to 27, which I shall explain as briefly as I can.
New clause 22 seeks to amend the Bail Act 1976 by adding a requirement
for the court to consider the way in which the applicant poses a risk
to public safety. I suspect that this is in the back of every
magistrate’s or judge’s mind when they are considering
application for bail: does this person constitute a risk to public
safety? However, it would be helpful to set out that consideration
expressly in the 1976 Act.
New clause
23, and a number of those that follow it, seeks to adjust the way in
which those who are asking for bail are dealt with by the courts. New
clause 23 adjusts section 25 of the Criminal Justice and Public Order
Act 1994, which deals
with “no
bail for defendants charged with or convicted of homicide or rape after
previous conviction of such
offences”. Proposed
new paragraph (2) of that new clause amends the text of that part of
the 1994 Act.
The
important part of new clause 24 is proposed new paragraph
6ZA: “The
defendant need not be granted bail if he has been convicted but not yet
sentenced for an imprisonable
offence.” It
seems a matter of common sense that, if someone has been
convicted of a reasonably serious offence, but is yet to be
sentenced because the court has adjourned sentencing for
pre-sentence reports or for other reasons, we need to be careful not to
grant bail in the interim.
New clause 25
deals with the removal of the presumption of bail for prolific, or
persistent, offenders. Again the important part is proposed new
paragraph
6ZB: “The
defendant need not be granted bail if he is 18 years or over, has been
sentenced for recordable offences by the Crown Court or a
magistrates’ court on three or more occasions, and within 3
years of the date of the pronouncement of the last such sentence by a
court in England and Wales is subsequently arrested (or had information
laid against him) for a further recordable
offence.” All
too often, one reads in the newspapers and comes to learn through
constituency casework of offenders who reoffend, on any number of
occasions, while on bail. While I am not seeking wholly to remove the
courts’ discretion to grant bail in appropriate cases, we need
to be much more thoughtful about granting bail to that type of
offender.
New clause
26 deals with those previously convicted of breaching bail. Someone who
has shown a history of not respecting bail conditions—either by
failing to turn up when required to report, or by otherwise abusing the
licence that was given to them under a bail order—should not be
treated in the same way as someone coming before the court for the
first
time.
David
Howarth: I do not agree with a lot of what the hon. and
learned Gentleman has said. However, on that particular point, it is
already an offence not to report. His new clause adds an offence of
breaching a condition—only that point is
new.
Mr.
Garnier: I agree with the hon.
Gentleman. New
clause 27 has been taken from Scottish legislation—it is more or
less a direct lift, so I cannot claim to have been clever about it.
However, I have adjusted the Scottish legislation and put it, I hope,
in terms that fit within the jurisdiction of this country. New clause
27 would create a specific offence of breaching bail, for which the
court could impose an additional penalty to the one that would be
imposed for the underlying substantive offence. I will not go through
new clause 27, because it is in the amendment paper, but I hope that
the scheme behind it, which has, I think, been in place in Scotland for
about 10 years, appeals to the
Committee. That
brings us to the end of discussing the new clauses that are relevant to
this debate. The scheme is an attempt to tighten up bail, give the
public greater confidence in the bail system and make practitioners and
those who grant bail more wary of giving bail to those whom the public
might not think deserve
it.
David
Howarth: I hope that the Government resist these new
clauses and amendments—although it is partly the
Government’s fault for putting clauses about bail in the Bill in
the first place. I think that those clauses are largely there for
symbolic value, rather than to make any big practical difference to
what is going on.
Two cases
have received a lot of publicity: the Weddell case and the Peart case.
In the latter case, it should be remembered that the defendant was not
on bail in the first place, so it comes down to the Gary Weddell case.
There is no need for a panic about bail based on one exceptional case.
I urge both the Government and the
Conservative party to stay calm and not go down a damaging route that
could, in the end, increase the crime
rate. At
the end of 2007, the Justice Committee visited Canada, which is
normally known for its progressive criminal justice policies. When we
visited a large prison near Toronto, we found that it was packed full
of people on remand because of bail panic in Canada. The prisoners were
not doing anything in the way of activities, because it is difficult to
fit remand prisoners into the regime of a prison. They ended up
spending a long time on remand and before appearing before the courts.
They were often given either no prison sentence at all or a prison
sentence equivalent to their time served, and then they were released.
Canada ended up with a large prison population, when the prison
population had previously been falling. That decline was halted, and a
prison population was created that was doing nothing at all
constructive. We need to be aware of the dangers of having panics about
bail in this country,
too. The
consistent view that one gets from practitioners is that bail is
virtually never given in murder cases. The Government conducted a
snapshot survey in which they found that a surprisingly high
percentage—I cannot remember the exact figure, but I think it
was 13 per cent.—of defendants in homicide cases had been given
bail. That does not fit with the experience of any practitioner to whom
I have talked in any court. In fact, Liberty has suggested that such a
high percentage is simply a one-off problem—a
blip—because there was one case in which a large number
defendants who were all aged under 21 were given bail. I urge the
Government to conduct another survey, before Report, to see whether
they obtain a result consistent with the previous one, because that is
not what practitioners say, and it is certainly not what magistrates
say. Perhaps I should remind the Committee of my interest—my
wife is a
magistrate.
Mr.
Garnier: We have not
forgotten.
David
Howarth: I am afraid of the competitive punitiveness that
often breaks out between the Labour and Conservative parties. In this
case, it is not just that it might not do any good because it is based
on one exceptional case—the Weddell case—which could have
been dealt with differently under existing provisions, but it might
even lead to an increase in crime in the long term. The problem with
tabloid populism is that tabloid editors must respond only to the short
term and to selling their paper the following day. They do not have to
take responsibility for the long-term consequences of their
decisions.
Mr.
Garnier: Like the Liberal
Democrats.
David
Howarth: In this case, we have a particular responsibility
to call the other parties and tell them not to do that, because they do
not have to and it may make the problem worse.
One must
understand how bail works to see what the problem is. If someone is
remanded in custody, there are only three possibilities for what might
happen to them. First, they may eventually be found guilty and
sentenced to prison. Secondly, they may be found not
guilty or the case may be dropped, in which case they will be released.
Thirdly, they may be found guilty, but sentenced in some way other than
prison. Those three possibilities show what the problem is with
tightening
bail. The
first possibility is that someone is found guilty and sentenced to
prison. The time that they served on remand is deducted from their
sentence, so putting someone on remand in custody does not increase the
time that they spend off the streets in prison, and does not reduce the
risk of offending or protect the public. In fact, to the extent that
putting people in prison increases the risk of reoffending, it
increases the risk of future crime. We know, and the Ministry of
Justice briefing shows, that if people are put in prison, they often
lose their job and their home, and we know that those two conditions
are associated with an increased risk of
reoffending. My
remarks do not apply to the Government’s proposals, because
there will be so few cases—virtually none—that they will
make no difference, but they may apply to the Conservative
party’s proposals. From the information given by the
Conservative party and certain assumptions, the Library calculates that
they will increase the prison population by about 3,000. That is a
problem, and those 3,000 people, because they will have been
imprisoned, will be more likely to reoffend than people who have not
been put in
prison. The
second possibility is that the person is found not guilty, the case is
dropped and the person is released. In that case, what happens? We will
have imprisoned an innocent person for up to six months—that is
how long people are held on remand—and perhaps made them worse
by putting them in a position in which they lose their job and their
home. The third possibility is that the person receives a non-custodial
sentence, in which case we will have imprisoned someone whom the court
eventually decides should not be in prison with all the effects that
that might
have. 12.15
pm
The
Parliamentary Under-Secretary of State for Justice (Maria
Eagle): The hon. Gentleman seems to be arguing against
remanding people into custody at all. Is that his
argument?
David
Howarth: That is just one of those populist points that
people make. The Bail Act 1976 works. The 1976 Act, under which the
Government themselves are operating, creates a presumption in favour of
bail. Are the Government saying that they are against a presumption for
bail? If they are, they should put a clause saying that into the Bill.
However, they have not done so and, since they have not, the
Minister’s point also applies to her. Is that what she is
saying? No, it is not. Therefore it is also not what I am
saying. The
point is that there is a presumption for bail with certain exceptions
that are designed to balance the public interest against the downside
of remanding people in custody. The question is whether that balance
should go in one direction or another. The problem is that, if it is
shoved in the direction of bail panic, more crime will be caused in the
long term, not in the short term. The tabloid headlines might be
avoided in the short term, but in the long term there will be more
victims of crime.
I do not want
to go through the new clauses one by one, but there are problems with
particular ones. The problem with new clause 24, for example, which is
about removing the presumption of bail for convicted but unsentenced
prisoners, is precisely the problem that I have raised. If someone is
remanded in custody for a time, that time is knocked off their prison
sentence, so the public are not protected for any more time. If the
person is sentenced to a non-custodial sentence, there is a presumption
in the law that contradicts the court’s eventual decision. I
cannot see how that
works. I
do not want to mention all the new clauses one by one, but there are
serious problems with all of them. New clause 23, for example, violates
human rights standards under existing case law and therefore could not
possibly survive. A version of that new clause in the existing law was
read down by the courts, because it violated human rights
standards. The
political system has to get off the merry-go-round and start thinking
about the long term and about how we reduce crime. Amendments with the
same intent to the new clauses have been tabled on the part of the Bill
dealing with the sentencing provisions, which we will come to later on.
This is really about whether criminal justice policy works to reduce
crime or to reduce bad
headlines.
Bridget
Prentice: In order that we can get to the debate on
sentences, I shall try to be as brief as I possibly
can. Ian
Lucas (Wrexham) (Lab): Hear,
hear.
Bridget
Prentice: I thank my hon. Friend the Whip, who supports
that. I
assume that some of the amendments express the views of the previous
shadow Secretary of State for Justice, who issued proposals on the
matter in summer last year. However, although he has moved on, clearly
the policy has not. I understand the motive behind extending the
provisions beyond murder. In some ways, it does not seem unreasonable
that the provisions should extend to crimes that give rise to
apprehension of further violence elsewhere. But there are two reasons
why I feel unable to accept the
amendments. First,
it is right to keep the focus on the offence of murder, which has a
unique position within the criminal justice system because of its
seriousness, and dealing with that offence is the best way to address
the concerns of the public. Obviously, the line has to be drawn
somewhere. There are strong precedents for treating murder differently
from other
offences. Secondly,
and more practically, clause 98 requires bail decisions in murder cases
to be made by a Crown court judge. If we were to extend that provision
to catch defendants charged with other serious violent or sexual
offences, the number of cases to which it would apply would
substantially increase, which would have major implications for the
Crown court. The number of defendants proceeded against for murder in
2007 was 812, whereas almost four times as many were prosecuted for
attempted murder, manslaughter, rape or attempted rape. New clauses 22
to 26 seem to be designed to make remand in custody more likely for a
larger group of people, as the hon. Member for Cambridge has pointed
out.
The new
exception to bail in new clause 22 is unnecessary. It is difficult to
see how any defendant who is considered to pose a risk to public safety
would not also be at risk of offending or interfering with witnesses,
or otherwise obstructing the course of justice. Therefore, they need
not be granted bail. The existing exceptions to bail are sufficient to
protect public safety, and we do not see any need to add
another.
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