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Lord Falconer of Thoroton moved Amendment No. 38:

After Clause 48, insert the following new clause--

Forfeiture of recognizances

(" . For subsections (1) and (2) of section 120 of the 1980 Act (forfeiture of recognizances) there shall be substituted the following subsections--
"(1) This section applies where--
(a) a recognizance to keep the peace or to be of good behaviour has been entered into before a magistrates' court; or
(b) any recognizance is conditioned for the appearance of a person before a magistrates' court, or for his doing any other thing connected with a proceeding before a magistrates' court.
(1A) If, in the case of a recognizance which is conditioned for the appearance of an accused before a magistrates' court, the accused fails to appear in accordance with the condition, the court shall--
(a) declare the recognizance to be forfeited;
(b) issue a summons directed to each person bound by the recognizance as surety, requiring him to appear before the court on a date specified in the summons to show cause why he should not be adjudged to pay the sum in which he is bound;
and on that date the court may proceed in the absence of any surety if it is satisfied that he has been served with the summons.
(2) If, in any other case falling within subsection (1) above, the recognizance appears to the magistrates' court to be forfeited, the court may--
(a) declare the recognizance to be forfeited; and
(b) adjudge each person bound by it, whether as principal or surety, to pay the sum in which he is bound;
but in a case falling within subsection (1)(a) above, the court shall not declare the recognizance to be forfeited except by order made on complaint." ").

The noble and learned Lord said: My Lords, this clause seeks to strengthen the use of sureties in bail cases. A surety is a person who undertakes to hand over an agreed sum to the court if a bailed defendant fails to attend a court hearing. The new measure gives the magistrates' courts a new power to declare a recognizance--that is, the agreed sum--to be forfeited immediately and automatically where a defendant fails to appear at a court hearing. The new clause deals only with the procedure in the magistrates' courts only because it is only those courts to which the existing provisions apply. Forfeiture of a surety's recognizance in other courts is dealt with by rules of court, which may be amended by subordinate legislation.

The aim of this measure is to make sureties take their responsibilities more seriously. In too many cases, delay is caused by adjournments due to the non-appearance of the defendant. Stricter enforcement is needed to ensure that defendants who are released on bail surrender to the custody of the court at the next hearing.

Sureties are an important part of the bail process. The court may release a defendant on bail subject to providing a surety in cases where it considers that the defendant may not otherwise answer to bail. The particular advantage of the use of a surety, of course, is that that person can be with the defendant between hearings ready to remind him that it is in the best

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interest of the defendant, and indeed of the surety, for the defendant to attend court. In addition, where despite the surety's best efforts it seems that the defendant is intending to abscond, the surety is obliged to contact the police. The surety will generally be a friend or relative, but principally someone with influence over the defendant, who will promise to pay a sum to the court in the event that the defendant fails to appear at his next court hearing. This is a heavy responsibility and the surety should be certain that he or she would be able to ensure the defendant's appearance before making such an undertaking.

At present, where a defendant fails to answer to bail the court must first consider the extent to which the surety was at fault before deciding whether the sum should be forfeited and whether the person bound should pay the whole sum or only part of it. In some cases we believe that this approach may encourage the surety to enter into this contract recklessly, perhaps in the belief that he will easily be able to persuade the court that he did all that he could and that his money is never in danger.

The new measure which we are proposing will scotch that mistaken belief and send a strong signal to prospective sureties about the seriousness of the undertaking and the consequences of failing to keep to their side of the bargain. On the non-appearance of the defendant, the court will immediately declare automatic forfeiture of the sum. Notice of the forfeiture will then be sent to the surety together with a summons to attend court for the purpose of showing why the sum should not be paid. The court will then make a decision whether to order payment of the sum in whole or in part or whether to remit it to the surety. If the surety fails to answer the summons, the court may proceed in his or her absence provided that it is satisfied that the summons has been correctly served. This will enable the collection process to begin at an earlier stage than at present.

Under the new system, sureties will still have the opportunity to explain why they were unable to keep their side of the contract and the court retains the discretion to decide whether the sum should in fact be paid, in the light of the particular circumstances. But the important difference is that the onus for establishing lack of culpability is shifted fairly and squarely onto the surety. The fact that the declaration of forfeiture is automatic upon the defendant's failure to appear creates a much stronger link between the defendant's absconding and the surety losing his money. For this reason the surety will take his responsibilities more seriously and ensure that the defendant appears in more cases, thereby reducing adjournments and delay. I beg to move.

Lord Henley: My Lords, I speak to this amendment and the subsequent amendment that the noble Lord will be moving shortly. I speak not of the substance of the two amendments but to thank the noble Lord, Lord Williams of Mostyn, for writing to me on the 26th of March about these amendments and a number

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of other government amendments and offering some explanation as to what they are about. This is the first opportunity I have had to thank him for that.

Having listened to the noble and learned Lord and having read the letter of the noble Lord, Lord Williams, at first glance we entirely accept these two amendments. It might be, however, that my honourable and right honourable friends in another place, on looking at the amendments more closely, will have other concerns which they may wish to come back to when the Bill proceeds through their House. At this stage, so far as we can see, we would accept the purpose behind this new clause and have no objection to it.

Lord Thomas of Gresford: My Lords, it frequently happens that the sureties do appear and it is the defendant who is missing. This clause is so drafted that the court must first of all declare a recognizance to be forfeited and then issue a summons to each person bound by the recognizance as surety requiring him to appear. If he is already there, the provision that a summons must be issued to him is unnecessary. I would respectfully suggest that the Minister could look at that wording again.

Lord Falconer of Thoroton: My Lords, I am grateful for the qualified welcome that the noble Lord, Lord Henley, has given to this amendment and the next one. Regarding the point made by the noble Lord, Lord Thomas of Gresford, I will take note of what he says about whether there is a need for a summons if the surety is there.

The format of the clause is that once there is a non-appearance by the defendant then the recognizance is automatically forfeit. That is what happens at that stage. The next stage is for the summons to be issued so that he can have an opportunity at a later stage to come and say whether there is any good reason why it should not remain forfeit. It is a two-stage process. The first stage is intended to underline that that happens immediately with an opportunity at a subsequent date to come and say why he should be relieved from his responsibilities. Subject to that, I beg to move.

Lord Thomas of Gresford: My Lords, I do not think that the noble and learned Lord has followed what I said. New Section 1A(b) refers to issuing,

    "a summons directed to each person bound by the recognizance as surety".
That may of course be a person bound in his own recognizance. But sureties are normally independent people who frequently are there. They simply tell the court that they have no idea where the defendant is; they have done their best; but that is it. It seems excessive that they should then be summonsed to appear to give an explanation at a later date and to be put to all the expense and trouble of such an appearance. That is my point.

On Question, amendment agreed to.

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Lord Falconer of Thoroton moved Amendment No. 39:

After Clause 48, insert the following new clause--

Bail: restrictions in certain cases of homicide or rape

(" . In subsection (1) of section 25 of the 1994 Act (no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences), for the words "shall not be granted bail in those proceedings" there shall be substituted the words "shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it".").

The noble and learned Lord said: My Lords, this amendment will restore to the police and to the courts their rightful discretion in relation to the granting of bail in certain cases, a discretion which was removed by Section 25 of the Criminal Justice and Public Order Act 1994.

Section 25 of the 1994 Act prohibits the grant of bail to a person charged with or convicted of murder, attempted murder, manslaughter, rape or attempted rape if he has previously been convicted in the United Kingdom of any such offence and was, in the case of manslaughter, sentenced to imprisonment or, in the case of a child, detention. This means that, regardless of the particular circumstances of the case, the police and the courts are prevented by law from considering whether a person in those circumstances should be released on bail. The new clause amends Section 25 so that, instead of a complete ban on the grant of bail in those circumstances, there is in effect a rebuttable presumption that bail should not be granted in such cases.

The offences concerned here are very serious and the fact that a person charged with or convicted of one of those offences has previously been convicted of any such offence cannot and should not be ignored by those who have to consider whether that individual should be placed in custody or whether he should be released on bail. But to remove the ability of the police and the courts to make that decision is not in the interests of justice. It cannot be right to fetter the judicial discretion of the court in this way. It is possible, although I would suggest most unlikely, that there may be very exceptional circumstances where a release on bail in such cases might be the more appropriate option. The police and the courts should not be denied a statutory discretion to enable them to take account of those circumstances where appropriate.

In providing for such discretion, this amendment does not of course mean that defendants with previous convictions for these very serious offences will now be released on bail. As I have said, given the very serious nature of the offences and the associated risk to the public, this is highly unlikely to be the case. It was certainly not the case before the introduction of Section 25, which is one of the reasons why, when in Opposition, we argued that that provision was unnecessary. Indeed I recall that, during the passage of the Bill that became the 1994 Act, when we pressed the then government to give examples of cases which demonstrated the need for such an extreme provision, they had a very difficult time of it. They were unable to cite a single case where such a defendant had been

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granted bail, let alone an example of such a bailed defendant committing an offence while on bail, thereby casting doubt on the bail decision. The fact is that, as with any remand decision, the court will have to consider, in accordance with the provisions of the Bail Act 1976, whether the person before the court would, if released on bail, abscond, commit an offence or interfere with the course of justice. In reaching that decision, they must have regard, among other matters, to the nature and seriousness of the offence and to the defendant's antecedents.

There are also existing safeguards to insure against any unacceptable risk to the public as a result of the judicial discretion which we are proposing to restore. The Bail (Amendment) Act 1993, which applies to cases involving any offence attracting a maximum penalty of five years' imprisonment or more, gives the prosecution a right of appeal to a Crown Court judge against a magistrates' court decision to grant bail. The defendant must be kept in custody pending the outcome of the appeal. In addition, the Bail Act indicates that if a defendant who has been charged with any such offence is granted bail and representations have been made that he should be denied bail, the court must state its reasons for granting bail and cause those reasons to be included in the record of the proceedings.

When in Opposition we argued against the introduction of Section 25 in 1994, but we were mindful then and remain aware of public concern about some bail decisions. While it is important that the bail decision remains with those who are in possession of the full facts of the particular case, the public must have confidence in the bail process as a whole. Section 25 as amended will ensure that where the police or the courts are dealing with cases of what might well be repeat homicide or rape, the presumption will be that the defendant is taken into custody. We consider that, in the exceptional cases at which Section 25 is targeted, it is right to reverse the general presumption in favour of bail and shift the onus onto the defence to provide good and sufficient reason why bail should not be denied. We do not envisage that this new burden on the defence will be easily overcome in most cases, but to rule out the possibility of granting bail cannot be justified.

We see this new provision as allowing some flexibility to prevent injustice, while ensuring that the protection of the public remains the primary concern and providing a tough additional safeguard against bad bail decisions in these particularly serious circumstances. I beg to move.

8.45 p.m.

Lord Thomas of Gresford: My Lords, I feel like a spectator on the road to Damascus. I reached for my very dark glasses because light appears to have dawned upon the Government in two specific ways. First, they are going back to a position that they adopted in Opposition; and I cannot remember that happening before in all the eight or nine days that we have spent on this Bill. Secondly, I could hardly believe my ears when I heard the noble and learned Lord talk about flexibility to prevent injustice: that it cannot be right to

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fetter the discretion of the court. The whole thrust of the Bill so far has been to remove discretion from the courts and to seek to impose limitations upon their powers.

I hope that this is a genuine conversion and that we see Ministers turning again towards what I regard as the true light of justice and flexibility. I support the amendment.

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