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Lord McCluskey: The Minister mistakes the affability of my manner. I was not being in the least mischievous in raising the point. It was, and remains, a serious point. If there has been no caseI do not know the answer, but the Minister presumably has researched and found no casein which a person with a previous conviction of the kind specified here has ever been granted bail, then the provision is entirely unnecessary. It is gesture legislation. It has nothing to do with anything real. We should not be engaged in such a thing. The law of Scotland is more serious than to be just a kind of football which is kicked around to make gestures in whatever direction. I do not know in what direction they are made, but I just do not understand it. It is not a mischievous point; it is a real point; it is a substantial point.
Lord McCluskey: Having read the Scotsman recently, the noble and learned Lord will know that sometimes such epithets are attributed to him when he has not even used them. So he must be careful when he does use them. In relation to the point about discretion, I suggest respectfully that the Minister's answer is not a sound one. The provision to which he refers is now contained in Section 26 of the 1975 Act, but it dates back to the 19th century. It states that all crimes and offences except murder and treason shall be bailable.
There may be exceptions to that, but it is a technical matter into which I shall not go. That of course imposes a limitation on a judge's discretion in relation to a specified charge of murder or treason. One can understand that, but to go from that position where judges always enjoyed discretion to saying, "You shall have no more discretion", is to take a significant step.
I do not know what consultation there was about this matter. I was one of the judgesjudge A or judge B, I cannot rememberwho figured in the bail report. I answered a great many interesting questions asked by researchers, but I do not recall being asked about that matter. I do not know what support there is. I do not know where this provision comes from. It is entirely unnecessary. It is unsound in principle. I ask the Government to consider carefully whether they want to press ahead with this pointless piece of unprincipled legislation.
Lord Macaulay of Bragar: Before the Minister replies, perhaps I may follow up what the noble and learned Lord has just said. Is the provision being introduced in the light of experience in England and Wales? If so, where can we find the statistics which suggest that people who fall within the categories described in Section 28A(1) do not abide by their bail conditions? It would be interesting to know. The more I look at Section 28A(1), the more I see it as a restriction on the right of the judge to exercise his judgment on behalf of the community.
I am not sure what statistics there are in the Crown Office, but I am sure that the noble and learned Lord the Lord Advocate could supply them. But do we know how many have been charged and convicted of attempted murder in the past year; and how many cases of attempted murder have been reduced to severe injury? Everyone knowsit goes without sayingthat one can go to the prosecutor and say, "All right, forget the attempted murder, we will plead to severe injury". Down goes the charge to severe injury and in some cases the person does not even go to prison. If this provision remains, he will stay in prison on a charge which the Crown may have overstated. We have had discussions about that before. A person has been kept in prison on a charge of attempted murder which never sees the light of day in a court. I am at one with the noble and learned Lord, Lord McCluskey, in asking the Minister to take the matter away and look at it.
The noble and learned Lord, Lord Fraser, suggested that I have knee-jerk reactions to the Bill. I am too old to have knee-jerk reactions, physically or legally. I do not have knee-jerk reactions and must make clear, as I did on Second Reading, that any contributions from this side of the Committee are not made in any carping or destructive sense. We are trying to be constructive because when the government change, as will be the case in the not-too-distant future, we shall be faced with the same problems. We hope to have the same degree of co-operation from the Minister in opposition as we are trying to give him now.
Baroness Carnegy of Lour: On Second Reading I asked those Members discussing the Bill from the point of view of lawyers not to forget the public. Having heard the discussion today, I believe that the public would be horrified to know that in such extreme circumstances someone could be granted bail. They would be even more horrified if someone were granted bail and offended again. It is not much comfort to know that all judges in their senses would never grant such an application. Although judges would never grant bail in such circumstances, it would be of great comfort to the public to know that they could not do so
Lord Harris of Greenwich: Perhaps I may ask the noble Baroness why the public would be reassured. We are told that there is no evidence to show that bail has ever been granted in such circumstances. Therefore, we are discussing a non-existent problem. I can understand the political purpose, which is to demonstrate that one is being tough on crime, but there is no serious legal purpose in the proposal.
Baroness Carnegy of Lour: People are extremely anxious about law and order and bail and therefore that argument does not wash. The fact that it has never happened is not the point. This slight addition to the Bill would give the public considerable reassurance. I do not believe that it would cause a great deal of trouble to judges or to anyone else. It is not a large addition; it is merely an enlargement of the circumstances. I speak as a layman but I believe that Members of the Committee are disregarding the way people feel. The fact that judges have never granted such an application and never would is not a great comfort. Indeed, I can imagine the newspaper headlines!
Lord Macaulay of Bragar: I apologise for interrupting the noble Baroness. She speaks of public anxiety. The offences listed are attempted murder; culpable homicide, which is causing the death of another person by an unlawful act; rape; or attempted rape. Fortunately, those offences are not a regular feature of life in Scotland. I agree that people are anxious when such crimes take place and follow them with interest. However, people in Scotland, England and Wales are anxious about the multiplicity of crimes that affect their domain and their households both personally and
Baroness Carnegy of Lour: I suggest that when the noble Lord goes home he talks to a few people in the street and asks whether they believe that it should be possible for bail to be granted in these circumstances. I believe that he will find that their views are not those that he has expressed.
Lord McCluskey: Perhaps I may be allowed the indulgence of saying a few words in response to what the noble Baroness said. I agree that the view of lay people who are not lawyers is extremely important. The law must be comprehensible and, in a sense, it must make gestures. However, we enact a provision in Parliament in order to counter a mischief. When judges look at the interpretation of a statute, they ask, "What was the mischief at which this was directed?". That is the approach I take. The answer is that there is no mischief because nothing is happening that we want to stop and nothing is failing to happen that we want to promote. Therefore, it is pure. One might as well enact Clause 56 on the basis that wickedness is bad. It is silly to make gesture enactments of that kind. One would then be doing what the noble Lord, Lord Renton, distinctly said should not be done; that is, cluttering up the statute book with unnecessary legislation. This is an important point. I cannot imagine that if the clause is carried today there will be dancing in the streets of Govan.
Lord Fraser of Carmyllie: We have probably said all there is to say about the clause. I share the view of my noble friend Lady Carnegy. The noble and learned Lord, Lord McCluskey, asked what was the mischief. Clearly, the mischief against which the clause is directed is that there should be no possibility whatever. At present there is a possibility that a man who has been convicted of rape in Scotland and is later charged again with rape can be given bail. I believe that if I asked the women of Govan whether they believe it right that a person previously convicted of rape and charged again with that offence should be out on bail they would give a simple, unequivocal answer. I believe that it is just as well to give them the reassurance that there is no possibility of that by including the provision as drafted on the face of the Bill.
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