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Lord Thomas of Gresford: Before the noble and learned Lord replies to that question, and after he has received the important information just communicated to him by the noble Lord, Lord Evans, perhaps I may ask him to deal with my point about the findings of the Joint Committee on Human Rights. He did not refer to them in his reply. The Joint Committee mentioned the case of Le Tellier v France where the European Court of Human Rights held that pre-trial detention must be limited to a reasonable period of time and the court must examine all the circumstances for or against a public interest in detention, justifying any detention with due regard to the principle of the presumption of innocence.

The court identified five factors which may justify detention pending trial: the risk of absconding, the risk of interfering with the course of justice, the prevention of crime, the preservation of public order and the need to protect the defendant. But the court made it clear that the individual's particular circumstances and personal characteristics must be taken into account and the reasons given for refusing bail must not be abstract or stereotyped, which is the point that the noble Lord, Lord Renton, was making a moment ago.

The problem about Clauses 14 and 15 is that they impose a straitjacket on the court that it must be confined by in considering the particular case in front of it. It is required not to give consideration to the particular circumstances and personal characteristics of the individual. It follows that Clauses 14 and 15 do have an abstract or stereotyped response to either the question of re-offending or the possibility of the defendant absconding. The Joint Committee on Human Rights has some weight in your Lordships' deliberations and if it feels that these provisions deny a person bail and they do constitute a disproportionate interference with Article 5(1) then we need to have a justification from the Government for why these provisions are put forward. Otherwise a court considering the matter at some future date may well say that these clauses are incompatible. The noble and learned Lord did not deal with that in his response and I ask him to do so now.

9.15 p.m.

Lord Goldsmith: Three quite separate points had been put before I sat down. I will try and deal with them in turn.

The noble Lord, Lord Renton, questioned me further on the issue of the mentally disordered defendant. What I wanted to do, and hope I did do, was to draw attention to the fact that in the provisions that are set out in Clause 15, the presumption that is set out in Paragraph 6(1) is subject to Paragraph 6(3), which would be the new Section 6(3) of the Bail Act, 1976. It provides that where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody he does not fall within the paragraph unless it 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 point that I was anxious to make is that when somebody is suffering from a condition where it is not right to say that he is responsible for not turning up,

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where he cannot have been expected to do so having regard to the condition, then the court would be entitled to say—I would expect it to do so—that he has a reasonable cause for not attending and therefore it is inappropriate for us to apply this presumption. It may then look at the case more generally and may, or may not, decide that in all the circumstances custody is appropriate. I see that the noble Lord, Lord Renton, wishes to speak and I give way.

Lord Renton: My Lords, I thank the noble and learned Lord for giving way. Is he is saying that the reasonable cause to which he refers could be mental disorder?

Lord Goldsmith: I do not want to be too telegraphed about this matter. It may be that the reason that the person has not attended is due to a mental disorder and that the magistrates or the court consider that in those circumstances it is appropriate to say that the person had reasonable cause not to attend or could not have been expected to attend. That is why I venture to suggest that the noble Lord had helpfully reminded the Committee that the degree of conditions could vary from very extreme to not so extreme. Of course, the court would have to look at the circumstances.

Secondly, I was chided by the noble Lord, Lord Hodgson, for not having dealt with the matter of the terms of a bail notice. The Government expect and wish that bail notices should be provided. It is important that that takes place. The sole point with which I was dealing—it is the sole point with which Amendment No. 62 is concerned—is whether the mere fact that such a notice has not been served should in itself constitute a reasonable cause for not attending. I suggest that based on existing law and based on common sense, the fact that such a document has not been served cannot be a reasonable cause. That does not mean that there may not be reasonable cause based upon a number of circumstances which to the court appear appropriate. That was my reason for responding to the amendment in a way that the noble Lord thought was a glancing blow. I thought I had driven it to the covers and perhaps rather further.

Lord Dholakia: I believe that the Minister is dealing with an example of mentally ill offenders. Many noble Lords have served as magistrates and will be aware that many people who appear before them are inadequate in various ways. Many times bail is granted with conditions. Surely the easiest way is for there to be an obligation on the court to ensure that bail notices are clearly specified—not only the attendance but also the conditions—rather than putting the onus on an individual having to justify why he or she did not appear with the excuse mainly that he or she just did not understand the conditions.

Lord Goldsmith: I repeat, as the 1976 Act states and as appears to the Government to be right, that failure to give a copy of the record of the decision to grant bail shall not constitute a reasonable cause for failure to attend. I suggest that as a matter of common sense that

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does not in any way detract from the desirability that notices should be provided and that they should be clear. However, as a matter of common sense, that cannot be a reasonable cause not to attend when one has been told in court, one has heard what has been said and others have reminded one and told one at the time. One cannot simply say, "Well, for this technical reason I did not get a copy of the document, therefore, I am entitled not to turn up; I am entitled to put the public, the court, the witnesses and the victims to inconvenience". In our view that will not wash.

The third point is the compatibility of the provision with ECHR requirements. The noble Lord, Lord Thomas of Gresford, referred to the Human Rights Committee, a committee for which I have great respect, having sat on it before taking my present position. Ultimately, it is a matter of what the jurisprudence of the Strasbourg court requires, and that does not consist of just one case but a number of cases.

As the noble Lord, Lord Thomas, rightly accepted, one of the clear circumstances in which it is appropriate, according to European jurisprudence, not to grant bail is in circumstances that concern the risk that someone would fail to surrender to custody if granted bail. This provision deals with precisely that. Generally speaking, it cannot be acceptable for someone to be released on bail, which is the basis for saying, "You will come back, and the witnesses and the victims will attend so that the court can deal with the case", and for him or her to fail to attend. Not surprisingly the European Court, while rightly saying that there must be reasonable times imposed and matters of that kind, states that that is a perfectly legitimate circumstance in which bail can be refused.

Ultimately, courts themselves, as public authorities, are also bound, as the noble Lord would be the first to remind me, by the requirements of the Human Rights Act and the European convention. The Government's view—and as it happens my view—is that the provision is compatible with our obligations under the European convention.

Lord Thomas of Gresford: Referring to the first amendment to which I am speaking, which would amend subsection (1), I now understand the meaning of lines 12 and 13, from "but" to "considerations", the part that we seek to exclude. I happen to think that it is very badly worded. I did not understand it before, and one or two alterations would make it clear what the noble and learned Lord had in mind. May I suggest a form of words which he can read in Hansard tomorrow? My suggestion is, "but this does not require the court, even if so satisfied, to disregard other considerations for not granting bail". I think that is what he said was the meaning of that particular phrase. I do not pretend to have any particular expertise, but if I did not understand it first time around, it is possible that other people might not, so I respectfully suggest that the wording be clarified.

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On the general issue—the human rights issue—we are back in the situation which permeates the Criminal Justice Bill and other legislation that is brought forward by the Government in this field. We are back to trying to impose, as I said earlier, the straitjacket upon the adjudicating body, whether it be magistrates or the judge in the Crown Court. All the matters to which I have referred from the European case, and cases, and all the matters to which the noble and learned Lord has referred, are already taken into account by magistrates in the exercise of their discretion in granting bail. Why it cannot be left to the adjudicating body to decide whether it is appropriate to grant bail in these circumstances—having regard to the individual in front of them and the particular circumstances, whether it be a mental or physical disability or failure to receive the court order—I do not know.

The notice from the court—the copy of the record of the decision to grant bail—is not quite as simple as the noble and learned Lord thinks. In very many cases, a large number of conditions of bail are imposed. There may be six or seven or eight including reporting, where a person is going to live, whom he may have contact with, and so on. It is extremely easy for a person charged with an offence to overlook one or other of those bail conditions. It is therefore particularly appropriate that he should have, in writing, quite specifically, what the conditions of his bail are.

I do not propose to press the amendment at this stage, but it is a serious issue. I would ask the noble and learned Lord to look at the wording—possibly my off-the-cuff amendment of it would make what he is aiming at rather clear—and to consider the whole position generally, particularly in the light of the conclusions of the Joint Committee on Human Rights.

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