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The Deputy Chairman of Committees (Lord Geddes): Before calling Amendment No. 69, I must advise the Committee that if the amendment is agreed to I will not be able to call Amendment No. 70 due to pre-emption.

Lord Thomas of Gresford moved Amendment No. 69:

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The noble Lord said: This amendment probes the Government to tell us why it is necessary to abolish the inherent power of the High Court. The High Court has a supervisory jurisdiction. It governs everything that happens in lower courts. I do not understand why that inherent power, which can be invoked in several circumstances, should have been abolished in subsections (2) to (5). I await an explanation. I beg to move.

Lord Renton: I support what the noble Lord, Lord Thomas of Gresford, has said. However, I wish to make a very minor drafting point. The word "inherent" is quite unnecessary. It is used twice—in the first line of subsection (2) and the first line of subsection (3). It would be sufficient simply to refer to "the power of the High Court".

Lord Goldsmith: The noble Lord, Lord Thomas of Gresford, asked why we should remove this right. The answer, in the words of another, is that it is a bit of a muddle and a wasteful duplication of process. That other was Lord Justice Auld. I will read what he said in his review, because I hope that noble Lords will see that it gives a complete answer to the point that was raised and shows why the provision is sensible. He said:

    "We have a permanently manned Crown Court all over the country which can deal with the matter by way of appeal, and those detained in custody no longer have to await the next visit on circuit of the High Court Judge or apply to a judge in Chambers in London to seek release. It is a separate and parallel, not appellate, jurisdiction. In my view, there is no longer any need for a High Court Judge to consider afresh the grant of bail after refusal by a magistrates' court or the Crown Court. If the magistrates' court and a Crown Court Judge, the latter on an original application or appeal by way of re-hearing, acting within the proper bounds of their discretion, have refused bail, it is an anomaly that another judge, albeit a High Court Judge, be entitled to exercise a further discretion in the matter".

The provision is required because there is an unnecessary and wasteful duplication of process. The rights of the defendant, which are, of course, very important, are entirely adequately safeguarded by the fact that the magistrates will have considered the matter and a judge in the Crown Court on appeal or by way of original application will have considered whether bail should be granted. It is for those reasons that the Committee in another place accepted after deliberations that the clause was welcome.

Government Amendment No. 70, which is grouped with Amendment No. 69, is merely consequential on an earlier change to Clauses 81 and 82, which removed specific provision for the variation of bail conditions.

Lord Renton: Could the noble and learned Lord deal with my very minor drafting point? Is the word "inherent", which is used twice, necessary at all?

Lord Goldsmith: I apologise to the noble Lord, Lord Renton, for not having picked up on that point. I do not regard the word as inappropriate. It is quite common to refer to some of the powers of the court, especially the High Court, as being inherent, which

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indicates that they do not derive from any particular statutory provision, but that they are inherent—I cannot find a better word. I hope that the noble Lord agrees that that puts the matter clearly beyond doubt and that it is not inappropriate.

Lord Mayhew of Twysden: Is there not an inherent weakness in what is being put forward by the noble and learned Lord? If one chooses to go to the Crown Court in virtue of its inherent jurisdiction—one goes to the Crown Court first by way of the original application—there is to be no appeal from that decision if the clause is agreed to. Is that altogether satisfactory?

Lord Goldsmith: The process that would take place—I was going to say in the vast majority of cases, because I can think of only one exception to the rule and I am not sure how many others there are—would be that the first decision about bail in any case would be for the magistrates' court. The matter would then go to the Crown Court. The application could be renewed at the Crown Court or, in a sense, appealed to the Crown Court. In those cases there would be two opportunities for the position as to bail to be considered. The exceptional case that I was considering—and I am not sure whether I am technically right about this—would be if a voluntary bail had been preferred, which might mean bypassing the magistrates altogether. I am not confident about that being the only exception or necessarily right in itself.

Generally speaking—this was the view of Lord Justice Auld, a very experienced Court of Appeal judge—it is unnecessary to have an additional jurisdiction alongside that of the Crown Court judge. That is why the Government take this approach.

9.45 p.m.

Lord Thomas of Gresford: It is not so much an "alongside" jurisdiction as a long stop jurisdiction. If the Committee will forgive me for being anecdotal, I will say that I remember a case in which a defendant surrendered to his bail on the first day of his trial. By a mischance, his surety had not attended at court for his bail to be renewed. Bail would have been renewed in the ordinary course of events, but, because the surety did not arrive, the defendant was taken off to Brixton.

Then, the surety arrived, but it was 4.15 and the judge had gone home, as judges tend to do at the Old Bailey. I withdraw that comment; it is not fair. They work very hard. Mr Geoffrey Robertson and I—he was my junior at the time—attended before the duty High Court judge. We dragged him from his dinner and obtained an order. At about 10 o'clock at night, I think, we went down to Brixton and retrieved our client, so that he was not required to spend the night in custody. He would not normally have been in custody.

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That was not something that happened every day, but it was useful to have the long stop provision. I see no reason why that inherent power should not continue.

Lord Goldsmith: I understand from that anecdote that it happened a long time ago—Mr Geoffrey Robertson was the noble Lord's junior—and that the case involved an Old Bailey judge, among the most experienced of our criminal judges, and that the application resulted in the defendant avoiding one night in custody. In a sense, the story makes the point. If an extremely experienced criminal judge, such as an Old Bailey judge, has, in his discretion and knowing all the circumstances of the case, reached the view that it is appropriate to withdraw bail or withdraw it in those circumstances, why should that decision be overridden by another judge who happens to be a High Court judge but—dare I say it—might have been from my former chambers and had commercial or civil experience but not the criminal experience of an Old Bailey judge? I stand unrepentant, notwithstanding the anecdote. This is an appropriate clause.

Lord Mayhew of Twysden: I am sorry to prolong the matter. Even somebody from the noble and learned Lord's old chambers could see the justice of the application made by the noble Lord, Lord Thomas of Gresford, in the circumstances that he cited. In that anecdote, there is no criticism of the Old Bailey judge: he had gone home. He had to withdraw bail, when the surety did not turn up, and he was no longer there when the surety did turn up.

That is all that we are looking for. It is not enough to say, "It was a long time ago, and it is a very rare circumstance. Anyway, what's a night?". In each of the circumstances, the anecdote warrants keeping the clause.

Lord Borrie: I am not sure that it does. Have we forgotten that the surety failed to turn up? I know that that was not the fault of the accused, who might have had to spend a night in gaol as a result, but it is a fact. What if he had not turned up for hours? That would have been too bad, and the accused would have had to stay one night.

Does that justify there being the long stop that the noble Lord, Lord Thomas of Gresford, suggests? To my mind, it has been out of date since 1970, when the Courts Act created the Crown Court and all the rest of it. In 2003, we are now just about catching up with the situation. High Court judges should no longer be expected to be the back stop or long stop, as the noble Lord put it. I listened closely to the anecdote and I did not really feel that that hard-luck case justified the retention of the High Court judge's role in life in the circumstances mentioned.

Lord Thomas of Gresford: If that was the only circumstance in which the High Court judge was required to be a long stop, I would agree with the noble Lord, Lord Borrie. But that is not the case. One simply cannot envisage or categorise the circumstances which

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will arise in all sorts of cases. In answer to the noble and learned Lord, of course the Old Bailey judge was not making a decision to refuse bail. As the noble and learned Lord, Lord Mayhew, pointed out, he was unable to grant bail in the absence of the surety, who just turned up late. I use it as an anecdote and not as a principle; in those circumstances, the long stop was useful. It does not require anything more than that the High Court judge should be capable of taking a decision of that kind where the liberty of the subject is involved.

After all, the High Court judge is there entrusted with the responsibility—as are all judges—of maintaining the liberty of the person. Although I apply to withdraw the amendment, I hope that the noble and learned Lord will consider what has been said and question with his officials whether it is necessary to do this. I am not persuaded by the suggestion made by the noble Lord, Lord Borrie, that it has taken us 33 years to catch up. In fact, I think that it is 31 years since the Crown Courts were brought into being. I am not persuaded that that is the proper approach. I am much more concerned with what happens to individuals. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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