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Lord Fraser of Carmyllie: For the very reasons which the noble and learned Lord, Lord McCluskey, has given, I wish to resist Amendment No. 11, although I have some sympathy with the intention of Amendment No. 10. I find the position of the noble Lord, Lord Macaulay, somewhat curious. On the one hand, he says that he does not want Clause 3 to stand part of the Bill,

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but at the same time, by moving these amendments from the Opposition Front Bench, it appears that he wants to extend its scope yet further. I leave the noble Lord to resolve that dilemma for himself.

To follow what the noble and learned Lord, Lord McCluskey, said, I must advise the noble Lord, Lord Macaulay, that this is not just a technical quibble about drafting. There is no term "serious sexual assault". If we are to deprive people of their right to bail, we must be absolutely specific as to what those offences are.

For those reasons, I do not think that there is any real possibility of the noble Lord redrafting the amendment to provide the type of definition that will be necessary. In any event, however, given its defective character at present and given the point of principle that is objected to with regard to Amendment No. 11, I invite the noble Lord to withdraw Amendment No. 10 and not to move Amendment No 11.

Lord Macaulay of Bragar: I have been called a lot of things in my day; but this is the first time that I have been called "an unresolved dilemma" and that I have found out that I am "defective" in character. Nonetheless, I am sure that the Minister used those expressions in the best of spirits. In answer to the noble and learned Lord, Lord McCluskey, I should have thought that the use of the word "serious" is subjective. If a prosecutor is to be responsible for framing charges against people, clearly the court would take into account the nature of the complaint or the indictment against that person when considering whether the charge fell within that context.

As I said earlier, I have reservations about Amendment No. 11 because of the presumption of innocence argument. I entirely agree with the noble and learned Lord, Lord McCluskey, on that matter, and I beg leave to withdraw Amendment No. 10.

Amendment, by leave, withdrawn.

[Amendment No. 11 not moved.]

On Question, Whether Clause 3 shall stand part of the Bill?

Lord McCluskey: I have given notice of my intention to oppose the Question that Clause 3 shall stand part of the Bill. The short point is that the amendment which this clause makes to the 1975 Act is totally unnecessary. To paraphrase it, it says that if a person has previously been convicted of murder, attempted murder, culpable homicide (or manslaughter, as the same crime is known in England), rape or attempted rape and has previously been convicted of one or other of those crimes and is brought before a court and charged with attempted murder or culpable homicide or rape or attempted rape, he shall not be granted bail.

On Second Reading, at col. No. 568 of Hansard, I asked the Minister whether he could give me any instance where circumstances of that kind obtained and bail had been granted. He did not answer at that stage. No doubt he has been very busy conducting his researches since then, so I hope that he will answer that question today. My impression is that the clause is

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entirely unnecessary and that no judge in his right mind—many of us are in our right minds—would grant bail in such circumstances. All that the clause does is to clutter up the statute book with provisions which are simply not necessary. I shall be interested to hear whether the Minister has managed to dig out such a case. If he has, I am sure that the circumstances must have been very special indeed and I hope that he will tell us about them. If he has not found any such case, surely the sensible thing to do is to abandon the provision altogether.

In our jurisdiction, removing the discretion of a judge is a very serious constitutional step. In California, and in the United States generally under the Sentencing Reform Act and a number of other provisions specific to particular states, judicial discretion has been whittled down until it hardly exists in relation to a great many matters. The situation is becoming serious. We do not want to go in that direction for the reasons that I shall have to explain later. We must be careful about saying to judges who deal with bail, and in particular to High Court judges, "You can have no discretion in a matter of this kind". I ask the Minister whether there is any evidence that this provision is necessary and I oppose the Question that Clause 3 shall stand part of the Bill.

4.45 p.m.

Lord Macaulay of Bragar: Likewise, I have given notice that I intend to oppose the Question that the clause shall stand part of the Bill. I thoroughly endorse what the noble and learned Lord, Lord McCluskey, said. The provision seems to put some form of restriction on the judge granting bail rather than extending the circumstances in which bail should be refused. Some time ago the case of Smith v. Her Majesty's Advocate laid down the circumstances in which bail should be refused; but, as far as I can recall, nobody bothers with it any more. Perhaps the provision is a way of statutorily trying to redefine what a judge should do. However, the judge must always be the master of the instance in balancing the public and private interests in every case that comes before him. As the noble and learned Lord said, the clause seems an unnecessary restriction on the judges' rights.

When I read Clause 3, I was concerned about new Section 28A(1) (b) and the question of culpable homicide, which is the Scottish equivalent of manslaughter. I know that that provision will be qualified by new Section 28A(2) (b) (i) which states that the person must have been sentenced to imprisonment. However, let us consider current developments in life and the case of a husband who kills his dying wife or the wife who kills her dying husband. If a husband smothers his wife who has only two weeks left to live, he will quite properly be charged with culpable homicide. The court may impose a sentence—in the public interest, as it sees it—of two years' imprisonment, taking into account all the tragic circumstances of the case. I use that as one example. But is that person, who has killed on humane grounds, to be denied by statute the right to bail? When hearing a bail appeal in circumstances of that kind—we have heard about such cases recently—is the court to be

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restricted in the hearing of evidence concerning certificates from the accused person's doctor, psychiatrist, psychologist or an expert in post-traumatic stress disorder? If the Bill stands as it is, a court could not take such information into account.

I bow to the experience of the noble and learned Lord, Lord McCluskey, who said that he has served as a bail judge for many years. But surely a court would have to say to the counsel or solicitor presenting an application for bail on behalf of someone in such tragic circumstances, who may have been wrongly incarcerated by the trial judge, "I am sorry. I understand what happened and that your wife was suffering badly and that you wanted to end her life in order to prevent her suffering any further, but I am afraid that the Government have introduced a statute which means that I cannot do anything about it and you will have to go to prison and stay there until your appeal is heard".

I am not making a carping point. I am citing that as an example of why the Government might like to reconsider this provision. They might like to ask themselves whether culpable homicide at least should be taken out of the categories of those proceedings where a person has been charged or convicted. Indeed, the provisions go even further because new Section 28A(1) states,

    "charged with or convicted of ... culpable homicide".

That means that the sympathetic spouse who has ended his partner's agonised life and who has been charged by the prosecutor has to languish in prison until the trial takes place and that a court has no power to release that person in the interests of humanity, if of nothing else, even where there is no risk to the community.

I am sure that the noble and learned Lord knows of many such cases. He must have read cases during his time in the Crown Office and in his present office with which he must have had considerable sympathy, and which must have raised questions as to whether the person should have been charged at all. In many cases—to use a colloquialism which is a piece of nonsense—someone walks free from court. No one ever walks free from court once he has been convicted; he has a conviction. I ask the Minister to look again at the provision. Depending upon his answer, we may look at the matter in a different light on Report.

Lord Fraser of Carmyllie: While I understand clearly what the noble and learned Lord said about the discretion invested in Scotland's judges, the law of Scotland already provides that the offences of murder and treason are not bailable. In those circumstances the discretion is already circumscribed. That has been the statutory position in Scotland since the Bail (Scotland) Act 1888. My understanding is that before the passage of that Act there was an extensive list of offences for which bail was not to be permitted. They were generally those offences which attracted capital punishment. Murder is not bailable in Scotland, because we regard it as the most serious of crimes, and it is for that reason, and for the protection of the public, that the law provides that persons charged with murder should not be released on bail.

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The provisions of Clause 3 seek to extend those principles to cases where a person has previously been convicted of one of the very serious offences specified, and subsequently faces similar serious charges. The noble Lord, Lord Macaulay, described a graphic and moving case of a man who might have done away with his wife in circumstances which might not ordinarily attract a custodial sentence. However, what needs to be remembered is that that same individual, before the provisions of the clause would be attracted, would have had previously to have committed one of those very serious offences. With respect to him, it is unlikely, to say the least, that the problem he has described would arise.

Clause 3 seeks to provide assurance to the public that, where a person has previously been convicted of a serious offence, and is then charged with further offending of a serious nature, he will not be eligible for bail. While the exercise of the grant of bail must reflect the presumption of innocence of the accused and the specific circumstances of the case, the refusal of bail must also be considered where there is a risk to the public. We believe that in the circumstances envisaged in Clause 3 the risks to the public are such as to require the accused to be remanded in custody.

The noble and learned Lord has asked me mischievously whether I have been able to trace a case of someone who has been convicted of one of those serious offences, charged subsequently, and granted bail. In posing the question, I have no doubt that he knew the answer. I am not aware of any such case. At worst, it seems to me that he is saying that the clause is unnecessary, and that he, as a bail judge, could not envisage circumstances in which he would wish to apply a discretion. So far as he and I are aware, there has been no case where a judge has exercised a discretion and allowed bail. There is a limited list where the discretion is already restricted. We are making this small addition to it. It may be in one view unnecessary, nevertheless, it provides assurance to the public in Scotland. It has been widely welcomed, and I should like to see the clause retained on the face of the Bill.

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