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Lord Borrie: I am most interested in the proposal of the noble Lord, Lord Thomas of Gresford. My reading of Clause 14 is that this is a well-justified tightening of the rules on bail both to ensure compliance with the European Convention on Human Rights and to prevent abuse and to retain the discretion of the court, which is the most important matter.

Paragraph 2A of Part 1 of Schedule 1 to the Bail Act 1976, according to the Law Commission in a report a couple of years ago, could be seen as contradictory to the European Convention on Human Rights. The Law Commission said the Act needed amending to make plain that just because the defendant was on bail at the time of the alleged offence, that was not an independent ground for refusal of bail. It is meant to be—I hope that Clause 14 does this—only one consideration that the offence was committed on bail. This is surely a very valid consideration that the court should take account of in determining whether there is a real risk of the defendant offending yet again while on bail. This surely is one of the key legitimate grounds for refusing bail, along with the other ones with which we are familiar such as the risk of absconding and the risk of interfering with witnesses.

Lord Goldsmith: Bail is a very important part of our criminal justice system, but it is right also to recognise that there are sadly many who are provided with bail who yet go on to commit other offences, as there are many who are provided with bail who yet go on not to surrender to custody. Home Office research has shown that as many as one in four of those who are granted bail go on to be convicted of a further offence committed when they are on bail. For offences such as vehicle crime and shoplifting, that research indicated that the figure is as many as over 40 per cent who commit further crimes while on bail.

That is clearly a source of legitimate concern for the public—that someone who has committed an offence is granted bail, yet commits a further offence during that period. Equally—and I make the point at this stage although it is more relevant to Clause 15 than

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Clause 14—those who are granted bail yet do not turn up to their custody create a great problem for the criminal justice system. It is obviously a waste of time and resources if someone fails to surrender to custody when the court is ready to deal with the case. But more than that, it is a source of frustration and distress to victims and witnesses who turn up for the case to be dealt with, only to find that a defendant who has been given this opportunity—that is, given bail—has failed to turn up himself. I am sure that noble Lords will agree that it is entirely justifiable that, as the jurisprudence of the European Convention on Human Rights makes plain, a reason for not granting bail would be the existence of some risk that a person would commit an offence while on bail.

My noble friend Lord Borrie is absolutely right in saying that the present position under the Bail Act 1976 is one that the Law Commission has suggested takes the position too far. Paragraph 2A of Part 1 of Schedule 1 to that Act purports to make the fact that a defendant was on bail at the time of the alleged offence an independent ground for the refusal of bail—full stop, as it were. The Government are drawing back from that by proposing that we should consider the true justification for the refusal of bail in such a case which is not that the alleged offence was committed by a defendant who was already on bail, but the risk of a further offence being committed derives from that fact.

Most people would regard the fact that an offence was committed when a defendant was on bail as very significant in assessing the risk that further offences could be committed, as my noble friend suggested. Subsection (1) therefore repeals the existing provision in paragraph 2A and replaces it with a requirement for the court to refuse bail to an adult defendant who is on bail in criminal proceedings at the date of the offence, unless it is satisfied that there is no significant risk that he would so fail if released. That is obviously a very important final piece to the clause. As my noble friend Lord Borrie said, it leaves it for the court to have the ability to say that notwithstanding that an offence has been committed while on bail, it is appropriate to grant bail because there is no significant risk that the person would commit a further offence.

I suggest that that position is entirely consistent with our ECHR obligations. I respectfully agree with the noble Lord, Lord Renton, that it is critical in such areas that we should comply with our obligations under the European Convention on Human Rights. The Government's view is that the clause does that, because it remains open to the court to say that notwithstanding that there has been an offence, there is no significant risk of the person committing a further offence while on bail.

While dealing with those matters, it is right to draw attention to the rather different provision that applies in subsection (2), which would apply to defendants under 18, to whom the reverse presumption would not apply. Different language is used, and the court is to give particular weight to the fact that the offence was

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committed on bail in deciding whether or not the defendant would be likely to reoffend if released on bail.

I hope that the Committee agrees that in putting these amendments forward we have had full regard to our European convention obligations. Compared with the 1976 Act we are extending the ability of the court to be able to grant bail in appropriate cases and have ultimately struck a balance which is acceptable. I hope that against that background the Committee will agree that Clause 14 should stand part of the Bill.

Baroness Carnegy of Lour: Will the noble and learned Lord explain to me as a lay person exactly what the difference is between the way a person is treated in subsection (1) as opposed to subsection (2)? I do not understand what the difference is when the person is under 18. More weight is given to a certain fact in subsection (2), but is weight not given to it in subsection (1) as well?

Lord Goldsmith: Yes, of course, but subsection (1) goes further because the court is required to refuse bail unless it is satisfied—and the test is there set out—

    "that there is no significant risk of [the person] committing an offence".

In reaching that conclusion the court will have regard to all the circumstances. Undoubtedly a stronger test would apply to the adult than to the person under 18. I hope the Committee agrees that that is the right approach.

The Deputy Chairman of Committees (Baroness Fookes): The Question is that Clause 14 stand part of the Bill. As many as are of that opinion will say "Content", the contrary "Not Content". The Contents have it.

Clause 14, as amended, agreed to.

The Deputy Chairman of Committees: I call Clause 15.

Lord Thomas of Gresford: I intended to reply briefly to the comments of the noble and learned Lord the Attorney-General.

The Deputy Chairman of Committees: The clause has already been passed. I paused slightly before I put the Question.

Lord Thomas of Gresford: With the greatest respect I did not hear a pause, if one can hear a pause. However, I shall confine my remarks to the next clause to which they are equally applicable.

Clause 15 [Absconding by persons released on bail]:

Lord Thomas of Gresford moved Amendment No. 61:

    Page 10, line 12, leave out from "custody" to end of line 13.

The noble Lord said: This is my opportunity to speak which I shall take.

The noble and learned Lord the Attorney-General indicated that the Government were very concerned to comply with the convention and to ensure that

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convention rights are upheld. In relation to Clauses 14 and 15 he will know that the Joint Committee on Human Rights pointed out that it was unable to accept his view as expressed previously. No doubt that view will be expressed again in a moment. Provisions which deny a person bail unless he or she can convince a court that there is no significant risk of their reoffending—I refer to Clause 14—or failing to surrender for trial seem to us to constitute a disproportionate interference of the right to liberty under Article 5.1 of the European convention. A court would be prevented from considering the other convention rights of the defendant, of members of his or her family and of other defendants.

The amendment is designed to leave out the words,

    "but this does not require the court, if so satisfied, to grant bail (disregarding other considerations)".

That means that the court may come to the conclusion that there is no significant risk that, if released on bail, the defendant would fail to surrender to custody. But even though it comes to that conclusion, it is not required to grant bail. That seems to me to be entirely wrong. If a court is to determine the circumstances set out in the proposed amendment to the 1976 Act—to the effect that the defendant is not to be granted bail in the circumstances so specified—and if it comes to the conclusion that there is no significant risk, why does it not follow the natural consequence of that finding and allow bail? On what other basis is bail to be refused? That is the problem—no significant risk that he would fail to surrender to custody. It seems to me that with that conclusion the proper decision for the court must be to grant bail. I should welcome enlightenment from the noble and learned Lord as to why the Government take a different view. I beg to move.

9 p.m.

Lord Hodgson of Astley Abbotts: Would the noble and learned Lord like me to speak to Amendment No. 64 now, or would he prefer to move his amendments first? Which would be most convenient?

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