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Lord Fraser of Carmyllie moved Amendment No. 7:

Page 2, line 35, after ("sentence ") insert ("or disposal").

The noble and learned Lord said: In speaking to Amendment No. 4, I spoke also to Amendment No. 7. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 8:

Page 3, leave out lines 1 to 7 and insert:
("(2D) Where the sentence or disposal in respect of the subsequent offence is, by virtue of subsection (2A) above, different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.").

The noble and learned Lord said: Similarly, in speaking to Amendment No. 4, I spoke also to Amendment No. 8. I beg to move.

On Question, amendment agreed to.

[Amendment No. 9 not moved.]

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

Lord Macaulay of Bragar: I shall make only a short contribution to this part of the debate but I wish to draw attention to the fact that the amendments we have debated increase the sentencing powers of the court quite considerably. The Law Society of Scotland and the Glasgow Bar Association have expressed concern about the powers being given to the court in terms of Clause

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2(1) and new subsection (2C), if that is not too technical. Those noble Lords following the Bill will know what I am talking about.

An important question is raised. If the country is to take such a serious view, and quite properly, of crimes committed while on bail, there should be a right to a separate trial. The question has been raised—it is not one I particularly agree with—as to whether in Scotland we should introduce a right to trial by jury rather than the summary procedure in view of the effects on the individual concerned. I should have thought that the deterrent value of the present Bail etc. (Scotland) Act has been to some extent to undermine. What might be better is, rather than, as the noble and learned Lord, Lord McCluskey, said in relation to Clause 1, constricting the court by putting into statute what the court can or cannot do, to leave it open to the court to exercise its common law powers to impose such sentence as it deems appropriate in the circumstances revealed to the court regarding the commission of the offence.

It appears that this clause is tinkering with criminal legislation. If it is felt necessary in the public interest to impose more severe sentences, let the court deal with it within the flexibility of the common law of Scotland rather than get ourselves tied up in administrative or legislative procedure. I know the trouble one gets into south of the Border in trying to define intent and murder and that kind of thing, because there they are hidebound by statute. Let us free the courts to deal with people who offend on bail by imposing sentences which the court sees fit in the particular circumstances, and allow the Scottish Court of Criminal Appeal to tell the Scottish public whether or not a sentence was a proper one. I beg to move.

4.30 p.m.

Lord Fraser of Carmyllie: One of the main effects of the Bail etc. (Scotland) Act 1980 was to move from the previous practice of "money bail" to the grant of bail on conditions. A primary purpose of these conditions is to ensure the appearance of the accused as requested for any diet. An additional purpose of the 1980 Act, however, was to address the problem of those on bail committing further offences.

During the 1980s, as recording practices by the police improved, it became clearer that the scale of offending while on bail was both significant and growing. The noble Lord will be aware of a very widespread concern in Scotland over that abuse of bail. It caused additional work for the police and there was undoubtedly an increase in public concern.

This clause builds on the 1980 Act provisions by increasing the penalties which may be imposed for bail abuse and by introducing a new power for the courts to adjust the sentence which they would otherwise have imposed for an offence if it had been committed while the accused was on bail. At present where an offence is committed while on bail a penalty may be imposed for a breach of bail conditions. The impact of such a penalty for bail abuse may, however, be lost on the offender especially if any sentence is made to run concurrently.

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Accordingly, this clause provides that, where the court considers it appropriate, it may—and it is no more than "may"—impose a higher penalty for an offence than it would otherwise have done, where the offence was committed while on bail. Where the sentence is so increased the court must state the degree of difference and the reasons for the increase. We believe that that will leave the offender and others granted bail in no doubt whatever how seriously bail abuse is to be treated.

With that explanation, I hope that the noble Lord will feel that he can support this important improvement in the provisions as regards bail and will recognise that they will indeed help tackle the growing problem of bail abuse which has caused so much concern in Scotland.

Lord Macaulay of Bragar: There is no doubt that there is concern both in the public and the police mind. We read in the newspapers about chief constables complaining of crimes being committed while people are on bail, of the softness of the courts in letting people out on bail, and so forth. I can quite see where that opinion comes from. It must be very frustrating for police officers to see people who they think should not be out on bail, walking about the streets.

I still wonder whether it is correct to put a statutory limitation on the power of the courts rather than just leave the matter to the common law power of the courts in Scotland to deal with the gravity of the case as and when necessary. It may very well be that the sentences referred to at new subsection (2C) of Clause 2(4) will not be sufficient for the court to deal effectively with the offence and the fact that the person was on bail. However, like most of the movers of amendments on the Marshalled List today, I do not intend to take the matter any further at this stage. I hope those who are interested will note what the Minister has said.

Clause 2, as amended, agreed to.

Clause 3 [No bail in homicide or rape proceedings after previous conviction of such offences.]:

Lord Macaulay of Bragar moved Amendment No. 10:

Page 3, line 17, at end insert ("or
(e) serious sexual assault").

The noble Lord said: For the convenience of the Committee, it may be appropriate to deal with Amendment No. 11 at the same time. As regards Amendment No. 10, I find myself in a bit of a quandary because I have given notice that I intend to oppose the Question that this clause stands part of the Bill. To put it in legal terms, perhaps I may present what I have to say on an esto basis on the assumption that this clause will stand part of the Bill. I suggest to the Committee that it might be appropriate to include the words, "or serious sexual assault".

This is quite an important issue which has become more prominent in recent years. I hope that those noble Lords in the Chamber who have experience of dealing with the victims of assault within the domestic area will contribute to this particular part of the debate. This matter is raised on behalf of abused wives in particular,

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although we are now finding out that there are also abused husbands, but they do not come to notice quite so much as abused wives.

The point behind this amendment is that because the definition of rape is so constricted in Scottish law, if this clause is to remain, the courts should be obliged to take notice of serious sexual assault which falls short of rape. In other words, in the case of an assault or an indecent assault on a wife or partner, whatever the phrase is these days, the courts should be able to take into account a serious sexual assault falling short of attempted rape.

Amendment No.11 raises the question of a person being charged with any offence which includes serious sexual assault. I appreciate that this may raise a fundamental issue—no doubt it will appear later in the debates—that if a person has been charged with an assault, that does not mean that he is guilty. That may undermine the basic assumption of innocence within our law.

I put the amendment before the Committee. It has been suggested by those who want to hear the Government's response. I do not move it with any particular enthusiasm because I am a defender of the presumption of innocence. For example, a husband is often charged with assaulting his wife or partner, but by the time the case comes before the court various developments have taken place such as intimidation, and the wife changes her mind. The amendment is really for the protection of the individual in the interim period between the alleged assault and the trial. We have our own time-scale in Scotland which ensures speedy trials for the category of offences in the proposed new Section 28A(1) where such offenders should not be allowed bail. I beg to move.

Lord McCluskey: I certainly would not want to take any technical objection to the amendment for reasons which I have already given in describing my own amendments. I do not believe that one can talk about serious sexual assault. It does not have a meaning. One of the difficulties is that one would have to confine the matter to very specified crimes if one were to go ahead in this way.

The point raised by Amendment No. 11 is one of principle. I seriously doubt the wisdom of proceeding with that particular amendment because, if one is exercising a discretion in relation to bail, the prosecutor would bring to the attention of the bail judge the fact that the accused faces several charges. That may be taken into account in the exercise of discretion. But if this amendment were to be carried, it would make it mandatory for the court to refuse bail simply because a person had been charged with such an offence. I should have thought that that was obnoxious in principle and that the amendment should not be accepted for that reason. Accordingly, I oppose Amendment No. 11.

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