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Lord Harris of Greenwich: In the light of the discussion about Govan, I wonder what the people there would say when asked, "This person has been charged with housebreaking and has previously been convicted of that. Do you believe that in any circumstances he should be granted bail?". I suspect that the noble and learned Lord will know the answer to that question. Are

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we really going to start legislating on this basis? It is a non-existent problem. I fear that it is being proposed exclusively for party political reasons and for no other.

Lord Fraser of Carmyllie: I do not accept that argument. It is a reassurance that can be given to women who not only have never voted Conservative but have no intention of doing so. The provision is such that they will be reassured that there is no possibility of bail being granted. For that reason, it is desirable that it should be on the face of the Bill. The worst criticism that can be directed against it is that it is unnecessary. I do not accept that. If the discretion will never be exercised by a judge, it is proper that Parliament should put that beyond doubt and provide a specific enactment to that effect.

Clause 3 agreed to.

Clause 4 [Right of prosecutor to seek review of grant of bail]:

Lord Macaulay of Bragar moved Amendment No. 12:


Page 4, line 29, at end insert ("and to his solicitor if known").

The noble Lord said: The amendment proposes the addition of the words "and to his solicitor if known" in order to ensure that the accused's solicitor is provided with a copy of the prosecution's application for a review of the decision to grant bail. One would assume that in most cases where someone is applying for a review of a refusal to grant bail there would be a designated solicitor. Certainly, it would not take a great deal to find out who was representing the accused.

As the noble Lord, Lord Harris, pointed out, we must be careful not to run a one-sided justice system in Scotland; or, indeed, in England and Wales. There must be a balance between the individual and the community. Any person whose bail is being reviewed by the court at the instance of the prosecutor should, if possible, have full legal representation and be able to consult at the earliest possible opportunity. I beg to move.

The Lord Advocate (Lord Rodger of Earlsferry): I accept that it may well be desirable for a person granted bail to obtain appropriate legal advice in the circumstances envisaged in the clause. However, the amendment falls into the same category of the unnecessary about which we have heard a good deal this afternoon. In practice, by intimation to the solicitor, that would be a way of intimating to the accused.

It is also the case that, in practice, where a solicitor is known to be acting, the procurator fiscal would intimate the application to that solicitor. While I accept that it is desirable that intimation should be made to a solicitor where such a solicitor is acting, I do not believe that it is necessary for that provision to be put on the face of the Bill. In the circumstances, I ask the noble Lord to withdraw the amendment.

Lord Macaulay of Bragar: I note with interest the remarks made by the noble and learned Lord the Lord Advocate. However, Members of the Committee will have noted that the amendment was carefully phrased so as to refer,


    "to his solicitor if known".

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It appears to me that, for practical purposes, it is better if an accused person is represented by a solicitor from the outset. That saves a good deal of complicated court procedures later on. While I argued the other way around in relation to the last clause, on this occasion I believe that the Bill would be none the worse for the inclusion of the amendment which does not put any obligation on the Crown to seek out the solicitor. Indeed, the phrase "if known" has been chosen carefully. If a review was taking place it would, perhaps, be up to the accused to tell the authorities the name of his solicitor. That seems to be quite a practical way of ensuring that we do not have unnecessary miscarriages of justice and all the things that we hear about these days. I have listened to what the noble and learned Lord said. I shall not press the amendment to a Division at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clause 5 [Bail pending appeal]:

Lord Rodger of Earlsferry moved Amendment No. 13:


Page 5, line 4, leave out lines 4 to 11 and insert:
(" "(1A) The High Court shall not admit a convicted person to bail under subsection (1) above unless—
(a) where he is the appellant and has not lodged a note of appeal in accordance with section 233(1) (a) of this Act, the application for bail states reasons why it should be granted and sets out the proposed grounds of appeal; or
(b) where the Lord Advocate is the appellant, the application for bail states reasons why it should be granted;
and, in either case, the High Court considers there to be exceptional circumstances justifying admitting the convicted person to bail.".").

The noble and learned Lord said: The amendment corrects a defect in Clause 5 which would have the effect of requiring an offender who applies for bail pending appeal to state the grounds of appeal even where the appeal is made by the Lord Advocate. The amendment corrects that defect by restricting the requirement to state grounds of appeal to applications for bail where the applicant is also the appellant. Clause 5 will continue to require the applicant for bail to state the reasons for his application, whether he is the appellant or the appeal is raised by the Lord Advocate. It is, essentially, a technical matter. I beg to move.

Lord Macaulay of Bragar: We now have before us another curious situation. I merely raise the question: why has such an amendment been tabled to the Bill when, according to the statements made on Second Reading, the legislation arose out of great consultation among all the interested people in Scotland? However, here we have another major amendment. Can the noble and learned Lord tell us what inspired it?

Lord Rodger of Earlsferry: The inspiration behind the amendment is that the way in which the legislation is drafted at present would produce a nonsense.

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Therefore, in order to remove the possibility of the statute book containing something which would plainly be incorrect, the amendment has been tabled.

Lord Macaulay of Bragar: Can the noble and learned Lord say why this Chamber has been presented with a Bill containing a "nonsense"?

Lord Rodger of Earlsferry: As the noble Lord knows, mistakes can occur in drafting. It is important that such matters should be resolved. Certainly, amendments tabled by Members of the Committee have indeed highlighted some drafting problems. I should have thought that one of the purposes of a Committee stage is precisely to identify such matters and to put them right, so that the legislation which goes forward to another place will be in a better condition than it was when it entered this Chamber.

5.15 p.m.

Lord McCluskey: Perhaps I may join in the debate. It seems that the noble Lord, Lord Macaulay, does not, perhaps, appreciate the tremendous pressures that parliamentary draftsmen are under when they prepare legislation, not least in circumstances where the Bill has to be presented at an early stage in a Session.

While I address the matter now before the Committee, perhaps I may also deal with Clause 5 so that I need not speak separately on the Question that the clause stand part. For the reasons that the noble and learned Lord the Lord Advocate gave, the amendment improves the provision. I accept that fact. But what does the clause then seek to do? It seeks to put into statutory form that which is already the practice of the court. I said that on Second Reading. There seemed to be some silent challenge to my remarks—namely, that there was a Practice Note. I have that note with me. It is dated 18th March 1994 and states:


    "Although section 238(3) of the Criminal Procedure (Scotland) Act 1975 enables an appellant to apply for bail when he has lodged written intimation of his intention to appeal, an application for interim liberation in the case of an appeal against conviction can normally be considered only when the note of appeal containing grounds of appeal has been lodged".

That is the Practice Note of the Lord Justice General and it is the one that we follow. Let it be noted that those decisions are made by judges of the High Court in relation to such matters. I also said on Second Reading—and I need not go into it in great detail—that when Lord Wheatley gave the decision in Smith in 1982 he expressed himself in the same terms and said:


    "Finally, I am regularly asked to grant interim liberation pending appeals. If the appeal is against sentence alone, no technical problem arises. If the appeal is against conviction the appellant has first of all to lodge a note of intention to appeal and later on a note of appeal which contains the grounds of appeal. An application for interim liberation can only be properly considered when the grounds of appeal have been lodged, and it is at that point that such an application should be made".

I apologise for misleading the Committee. It is possible that some of those applications are considered by other people and not just High Court judges. That was an error on my part.

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However, if that is the practice of the court and that is the decision which was intended to be followed even before the Practice Note made it the correct practice, the simple point is that the provision is entirely unnecessary. I would not object to one or two unnecessary provisions. Perhaps Ministers like to have them for one reason or another. It is not for me to speculate. But when we see that provision after provision on the question of bail is quite unnecessary and is simply enacting the current practice of the court, one has to ask: what are Ministers trying to do? They are filling the statute book with unnecessary provisions for no proper, sensible purpose.


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