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Lord Dholakia: My Lords, I am grateful to the Minister, but I remind noble Lords that we are talking about innocent people found not guilty in court and not proceeded with. The Minister says that law-abiding citizens have nothing to fear; I am afraid that they have everything to fear when their civil liberties are being eroded. If the Government genuinely want the measure, why not hold public debate and consultation on it? At that stage we would know what the public really wanted. The measure affects people's liberty, so it is about time we put a stop to it. I intend, therefore, to test the opinion of the House.

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6.55 p.m.

On Question, Whether the said amendment (No. 15) shall be agreed to?

Their Lordships divided: Contents, 103; Not-Contents, 101.

Division No. 2


Ackner, L.
Addington, L.
Alton of Liverpool, L.
Anelay of St Johns, B.
Ashcroft, L.
Astor of Hever, L.
Avebury, L.
Barker, B.
Blatch, B.
Bledisloe, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Carlile of Berriew, L.
Carnegy of Lour, B.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Dahrendorf, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Elis-Thomas, L.
Falkland, V.
Ferrers, E.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Goodhart, L.
Goschen, V.
Gray of Contin, L.
Harris of Richmond, B. [Teller]
Higgins, L.
Hodgson of Astley Abbotts, L.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Hurd of Westwell, L.
Kennedy of The Shaws, B.
Kimball, L.
Kingsland, L.
Kirkham, L.
Knight of Collingtree, B.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lyell, L.
McColl of Dulwich, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northesk, E.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer, L.
Park of Monmouth, B.
Peel, E.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Conwy, L.
Roper, L.
Russell, E.
Saltoun of Abernethy, Ly.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Taverne, L.
Taylor of Warwick, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Tope, L.
Trumpington, B.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Williams of Crosby, B.
Worcester, Bp.


Acton, L.
Ahmed, L.
Alli, L.
Amos, B. (Lord President)
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookeborough, V.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Masham of Ilton, B.
Massey of Darwen, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Nicol, B.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Ramsay of Cartvale, B.
Rooker, L.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

29 Oct 2003 : Column 326

7.5 p.m.

Clause 13 [Offences committed on bail]:

The Attorney-General (Lord Goldsmith) moved Amendment No. 16:

    Page 9, line 39, leave out from "not)" to end of line 40.

The noble and learned Lord said: My Lords, in moving this amendment, I will speak also to Amendments Nos. 18 and 22, and indicate the Government's position in relation to Amendment No. 19 to be moved by the noble Lord, Lord Thomas of Gresford.

We discussed in Committee the wording that appears in three clauses. It was intended to make clear that, when a court is satisfied that there is not such a risk as is identified in the clause—a significant risk of the commission of further offences, for example—it would not be under an obligation to grant bail irrespective of other considerations. As I said in Committee, if a court concluded that a defendant was not likely to abscond again but thought that there were

29 Oct 2003 : Column 327

other reasons to refuse bail—a risk of interference, for example—it was sensible to provide for the court to retain the power to refuse bail.

The words caused some difficulties. In Committee, the noble Lord, Lord Thomas of Gresford, proposed some wording—the wording that now appears in his amendment. We have looked at the matter again and concluded that it is an unnecessary precaution. There is little danger that a court would be under a misapprehension about how it would approach such a matter—it would in any event recognise that, if there were other reasons for not granting bail it would take those into account. Given that the words in question caused confusion, we thought it better to omit them. That is what the three government amendments do.

The noble Lord, Lord Thomas, proposes keeping words in and substituting a different form of words—those that he proposed in Committee. Having considered the matter carefully, we believe that it is best to drop the phrase altogether. I hope that the noble Lord will consider that that meets his concerns. I beg to move.

Lord Thomas of Gresford: My Lords, for the reasons outlined by the noble and learned Lord, it is not necessary for me to press Amendment No. 19. I am happy that the words, which the Government concede are confusing, have been left out of this and other clauses. Accordingly, I need not pursue the matter that concerned me in Committee.

On Question, amendment agreed to.

Lord Thomas of Gresford had given notice of his intention to move Amendment No. 17:

    Leave out Clause 13.

The noble Lord said: My Lords, I have considered at some length the views expressed by the noble and learned Lord the Attorney-General in Committee. It was his view that these provisions were consonant with the European Convention on Human Rights. I take a different view, but we are not going to settle this on the Floor of the House. The matter may well go to the courts and I shall leave it to them to adjudicate. I will not pursue the matter.

[Amendment No. 17 not moved.]

Clause 14 [Absconding by persons released on bail]:

Lord Goldsmith moved Amendment No. 18:

    Page 10, line 16, leave out from "custody" to end of line 17.

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

Lord Hodgson of Astley Abbotts moved Amendment No. 20:

    Page 10, line 32, at end insert—

"( ) The application of sub-paragraph (1) above shall be at the discretion of the court where the defendant is suffering from a mental disorder within the meaning of section 2 of the Mental Health Act 1983 (c. 20) (admission for assessment).""

29 Oct 2003 : Column 328

The noble Lord said: My Lords, sub-paragraphs (3) and (4) of new paragraph 6 of Part 1 of Schedule 1 to the 1976 Act limit the chances of bail being granted by, inter alia, stating that failure to give the defendant a record of the decision to grant him bail shall not constitute a valid excuse. A defendant who fails to comply with those conditions and who has a mental health condition could, as a result of the two sub-paragraphs, be denied bail. The amendment would make special provision for the granting of bail to those suffering from a mental disorder within the meaning in Section 2 of the Mental Health Act 1983.

The Government say that they have considered the special nature of those with mental conditions and concluded that provision is made for them in the Bill. In Committee, the noble and learned Lord the Attorney-General said that, if the person had a mental disorder,

    "the court would be entitled to find, and would be likely to find, that that person had 'reasonable cause' for his failure to surrender. So the presumption against bail would not apply".—[Official Report, 7/7/03; col. 108.]

As I read sub-paragraph (3), the court is required to take into account whether a defendant has a "reasonable cause". That does not seem to apply to the remainder of sub-paragraphs (3) and (4). Such details are key, and it may be helpful if I read out the sub-paragraph:

    "Where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, he does not fall within this paragraph unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time".

The claim made by the Attorney-General that those with a reasonable cause will be excused does not appear to be entirely true, given the detail of the wording. Overall, a defendant with a mental health problem who may have had a reasonable cause for failure to surrender to custody is given special consideration, unless he also failed to turn up at a certain place and time. That is my reading of the Bill. The word "unless" largely cancels out what comes before. Similarly, sub-paragraph (4) lacks any consideration for those with mental health problems.

Amendment No. 20 would provide a failsafe for those of our fellow citizens who are unfortunate enough to suffer from mental health problems. It cannot be sensible, given the pressure on our prisons generally, to remand such persons in custody. I beg to move.

7.15 p.m.

Lord Goldsmith: My Lords, as I said in Committee, the Government take the point that it would be unjust if a defendant were remanded in custody because of the risk that he would not surrender, if he was not responsible for his actions. Clause 14 places particular significance on a failure to surrender to custody.

Despite what the noble Lord said, I stick to what I said then: if it is clear that the defendant has a disorder and that that disorder has led to his non-appearance, the court would be entitled to find—I anticipate that it would find—that he had reasonable cause for his

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failure to surrender. That is the clause to which the noble Lord rightly drew attention. If it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, the paragraph does not apply.

I must make two points. First, the fact that the defendant suffers from a mental disorder will not necessarily of itself mean that his failure to attend is reasonable. I think that it was the noble Lord, Lord Renton, who made the point in Committee that mental disorder crossed a wide range. In those circumstances, the court would have to consider whether the condition was the reason for failure to attend. The noble Lord's amendment would not allow that. He may say that it does because the matter would be left to the discretion of the court. However, the amendment would not do what the Government believe is necessary, which is to focus on the failure to attend as a significant fact.

The noble Lord's second point was that what I said in Committee was not right because of the second part of the clause. The clause goes on to say that the paragraph will not apply if it appears to the court that the failure to surrender was reasonable but that it will apply if,

    "it appears to the court that he failed to surrender . . . as soon as reasonably practicable after the appointed time".

Respectfully, I take issue with the noble Lord about that. If a court has reached the view that, because of a disorder, the failure to surrender to custody is reasonable, it will not go on to say that it is reasonably practicable for him to attend on the next occasion, if that condition still exists. In other words, the words "reasonably practicable" carry within them the concept of whether the failure to attend was reasonable because of the disorder. The flaw that, the noble Lord suggests, is to be found in what the Government say is not there. The other clause includes the concept of reasonableness as far as concerns practicability as well. The Government do not think that the amendment is necessary. There is a sufficient safeguard against the danger with which the amendment is concerned.

The noble Lord made a point about sub-paragraph (4). I regret to say that I did not entirely follow it. I am happy to deal with the point, if the noble Lord wishes to repeat it. I understood him to refer to sub-paragraph (4) of new paragraph 9AB, which, as I understand it, is to do with the giving of a copy of a record of the decision to grant bail. We had that debate in Committee. The question is simply whether a technical failure to provide a copy of the record is in itself a reasonable excuse for not attending. In certain circumstances, it will be a reasonable excuse if someone does not know that they are to attend, but if someone knows that they are to attend and has been told by the court, the clerk and their own lawyer, no one will accept it as a reasonable cause if they then say, "I didn't have a piece of paper".

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I hope that I have understood the point. I suggest that we need not be concerned about it in the particular context that the noble Lord raised.

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