Lord Goldsmith: The amendment is grouped with this one. It would probably be convenient, therefore, if the noble Lord were to speak to it now.
Lord Hodgson of Astley Abbotts: Amendment No. 64 relates to Clause 15, and to persons released on bail. I hope that the wording is largely self-explanatory.
The amendment relates to a worry brought to our attention by the Magistrates' Association that no consideration or allowance with regard to bail has been made for those with mental disorders. While proposed sub-paragraph (3) in Clause 15(1) makes provision for bail to be permitted where,
"it appears to the court that the defendant had reasonable cause for his failure to surrender to custody",
the defendant would still be denied bail if,
"he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time".
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Proposed sub-paragraph (4), referred to by the noble Lord, Lord Thomas, further limits the chances of bail being granted by stating that a failure to give the defendant a copy of the record of the decision to grant him bail shall not constitute a valid excuse either. The Magistrates' Association believes that that opens up the possibility of a defendant with a mental disorder being denied bail for failing to comply with these conditions when it is entirely possible that he may not have understood the full implications of them.
It cannot be in the interests of anyonethe police, the Prison Service, the judicial service, or particularly the person in questionfurther to increase the strain on the system by refusing bail to people who, while confused, have no malicious intentions in failing to comply with bail conditions.
We should have been more comfortable had the proposed new sub-paragraph (4) in Clause 15(1)
"a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure"
been eliminated, because the Auld Report, which the Government have quoted and used extensively, states on page 430n that,
"bail notices should be couched in plain English, printed and given to the defendant as a formal court order when the bail decision is made, so that he understands exactly what is required of him and appreciates the seriousness of the grant of bail and of any attached conditions".
That would have reduced our concerns on this point. In the absence of that, Amendment No. 64 is designed to provide a failsafe which will enable the court to grant bail at its discretion to a defendant suffering from a mental disorder within the meaning of Section 2 of the Mental Health Act 1983.
Lord Renton: I support what my noble has said in relation to Amendment No. 64. The point that must be borne in mind about mental disorders is that they can vary enormously. Some will be so severe that the defendant concerned has absolutely no control over his actions. Others may be only slightly involved in an error of judgment. But the discretion of the court is necessary in whatever circumstances arise here, and therefore I believe that the amendment proposed by my noble friend is a very useful one.
Lord Goldsmith: I shall speak to Amendments Nos. 61 and 64. I note that the noble Lord, Lord Thomas, did not speak to Amendment No. 62, from which I infer that he does not intend to move it. However, I do not want to leave it unanswered if that was in fact an oversight.
Lord Thomas of Gresford: I should have spoken to Amendment No. 62. I note that the noble Lord, Lord Hodgson, made much the same point, that a failure to give a copy of the record shall,
"not constitute a reasonable cause for a person's failure to surrender to custody".
We find that unnecessary and restrictive.
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Lord Goldsmith: I am happy to deal with that now, or the matter might return later. It is better at least to explain the position as I understand it. I shall therefore speak to Amendments Nos. 61, 62, and 64and also to government Amendments Nos. 63, 65 and 66. They deal with different topics.
Amendment No. 61, moved by the noble Lord, Lord Thomas, would remove the concluding words of the new paragraph 6(1),
"but this does not require the court, if so satisfied to grant bail (disregarding other considerations)".
The noble Lord asked why would it be appropriate to deny bail if there was no significant risk that if released on bail a person would fail to surrender to custody. The answer is that there might be another good reason for not granting bailfor example, if there was a risk that that person would interfere with witnesses or the course of justice. There are a number of circumstances under which bail can be refused. All that this is doing is to make clear that if there are reasons for refusing bail independent of the question of absconding, then the court will retain the power to refuse bail, which it would have under the Bail Act 1976 in any event.
It could not be right to say that although one condition has been dealt with, even though there is another good reason for refusing bail, that that should be excluded automatically. So we could not accept the deletion of the words. Of course, the words are an amendment to an existing Act, which contains a number of provisions about the presumptions, subject to these amendments, in which bail would be provided, and so the other provisions of the Act should apply.
Amendment No. 62 seeks to remove paragraph 6(4), which, as the noble Lord, Lord Thomas, said, provides that,
"a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody".
That is no more than to repeat the provision that already exists in the Bail Act, in Section 6(4). There is no change by making this provision. In any event, the Government believe that this will rightly avoid technical arguments that a defendant could not have been expected to know his bail date because the court had failed to give him the required copy. The defendant might have been in court and heard very well the magistrates say, and perhaps his lawyer afterwards, "This is the date that you are supposed to attend". There would be no doubt that he had known the dateand to say later, "I didn't turn up because I haven't had a copy of the bail record", would be unacceptable. There might be circumstances which would lead the court to take the view that he had reasonable cause not to attend. But it could not just be the fact that there was no copy of the record.
I turn to Amendment No. 64, moved by the noble Lord, Lord Hodgson. As the noble Lord, Lord Renton, said, there will be degrees of disorder from which a person falling within the definition referred to by the noble Lord, Lord Hodgson, could suffer. I entirely take the point that it would be unjust if someone who was not responsible for his actions fell to be remanded in custody
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because of the risk that he would not surrender. A person who is mentally disordered ought to have been identified as such, and diverted away from the court, before this stage in the proceedings. If that has not happened, but it is nevertheless clear that the person is disordered, then I suggest that 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. That remains in this case for the court to consider. Did the person have reasonable cause for failure to surrender? That is the reason for resisting the amendment, although recognising and understanding the thinking which lay behind it.
I turn to the three government amendments. The purpose of Amendment No. 63 is to correct a disparity in the treatment of defendants aged 18 and below. Under the Bill as it stands, a defendant under 18 who has absconded not only is not subject to the presumption created by Clause 15(1); he would moreover benefit from a presumption in favour of bail owing to the removal of paragraph 6 of Schedule 1 to the Bail Act. That result would not be sensible and the amendment therefore requires the court in the case of defendants under 18 to give particular weight to the fact that they have failed to surrender to bail in assessing the risk of future absconding.
Amendment No. 66 simplifies and improves subsection (2) because it provides for a straightforward three-month limitation period to run from the defendant's surrender to custody, arrest or court appearance in respect of the offence, whichever is first. Amendment No. 65 is simply a drafting amendment and I hope that I need say no more about it.
Lord Renton: Before my noble friend Lord Hodgson replies, perhaps I may with great humility reply to what the noble and learned Lord the Attorney General said about Amendment No. 64. At first he seemed to accept the proposition that the circumstances arising from mental disorder would vary enormously, but then he gave the impression that we should not leave the matter to the discretion of the court. I would have thought that if justice were to be done, there must be variation. The court must have a discretion to apply whatever is required in the particular circumstances of the particular mental disorder.
Lord Hodgson of Astley Abbotts: Will the noble and learned Lord explain further why the Government did not follow the clear recommendation of the Auld report as to how bail notice should be couched, printed and handed out? He touched on it, but I thought it a glancing blow only. We are trying to achieve a balance throughout the Bill, particularly in this clause. The issue of bail, as he rightly reminded us, is important and one about which there is great public concern. The Auld report gave a clear recommendation, but the noble and learned Lord did not quite give it the drive through the covers that it might justify.
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