Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Goldsmith moved Amendment No. 70:

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Appeal by prosecution]:

Lord Hodgson of Astley Abbotts moved Amendment No. 70A:

    Page 13, line 8, after "imprisonment" insert "for two years or more"

The noble Lord said: Clause 18 concerns appeals by prosecution against bail. The Auld report made recommendations on revising the system for bail. The clause seems to have been drafted by the Government to follow some of the recommendations of Lord Justice Auld and would enable the prosecution to appeal against the grant of bail in respect of all and any offences punishable by a custodial sentence of any length. As I understand it, it used to be permissible with regard to offences carrying a custodial sentence of five years or more only.

We accept that those who persistently offend while on bail need to be reined back. Surely, the Bill as drafted risks clogging up the courts with appeals of all variations against potentially minor cases. Misdemeanours undoubtedly are committed on bail. The noble and learned Lord the Attorney-General already has referred to some of these statistics in earlier amendments. Are they widespread enough to warrant the possibility of a higher prison population figure?

7 Jul 2003 : Column 120

Lord Justice Auld explained in chapter 10, paragraph 90, page 433 of the report, that some of those who offend while on bail are guilty of committing what are called in America "quality of life crimes" which although not necessarily serious cause an unbalancing effect on the "community's sense of security". While one should not underestimate the effect of such antisocial behaviour, do such actions require the very strong and draconian line that the Government are now proposing to take? There must be some doubt whether the right balance is now being struck.

If the Auld report was referring to more serious offences, that would be a different matter. Since there are no statistics, we cannot really tell. There has been a helpful briefing from the London Criminal Courts Solicitors Association which points out that if the Government want to restrict bail further, they need to provide clearer evidence that the public are put at risk by the operation of the law as it stands. It has also stated that it is not aware of any supporting evidence or statistics. Nevertheless, one statistic that is thrown around regularly and with good reason is the size of the prison population in England and Wales. That now stands at around 73,500 and has risen by around six per cent just this year.

Leaving aside the civil liberty issue, will not the Government's proposals in this clause create a further burden on the already fast-growing prison figures and threaten to overwhelm a prison service already operating at arguably more than full stretch? Moreover, is there not the practical danger for those who are remanded, having been refused bail, that far from encouraging rehabilitation, it will serve to reinforce any tendency towards criminal behaviour?

We believe that a rethink is needed. Our amendment allowing prosecutions to appeal against bail where the custodial sentence in prospect is two years or more offers a more sensible and balanced way forward. I beg to move.

Lord Thomas of Gresford: In supporting this amendment, I should like to approach it from a different angle. This Bill and many criminal justice Bills support an industry of satellite litigation. As a member of the Bar one should not really object to that because it means more work. I note that the noble Baroness, Lady Kennedy of The Shaws, agrees with me. But litigation is piled on litigation. The right of appeal for the prosecution means another hearing, the use of court time and the payment of counsel for prosecution and defence. Some limitation should be put upon it. This modest amendment of two years or more is practical as well as right in principle. We on these Benches support this amendment.

Lord Goldsmith: This is not about satellite litigation. This is not about providing work for lawyers. It is about circumstances in which, in the view of the prosecution, bail has wrongly been granted to somebody. The public may need protecting against that person during the period until the offence comes to be tried. I noted the point made by the noble Lord,

7 Jul 2003 : Column 121

Lord Hodgson, about statistics. The statistics that I referred to before seem to me to speak volumes, Nearly one in four of defendants granted bail goes on to commit an offence of which they are convicted during the period of bail. There are a substantial number—nearly one in eight—who fail to surrender to their bail with all the consequences. This means a waste of time and resources and frustration for victims and witnesses when they find the case does not take place. These are serious issues which affect the quality of life of the British people.

This amendment proposes a different limitation on the offences where the right to appeal by the prosecution may arise. We do not find this a sensible limitation. We do not see that it is sensible to limit cases to those where imprisonment is capable of being two years. We follow the line that Lord Justice Auld took that such an appeal should arise in all cases of offences which are imprisonable, having regard to the fact, as he said, that there may be offences which are not of the most serious in the calendar of criminal offences but may cause considerable nuisance and detriment to quality of life, especially if repeated. For someone to have committed what may not have been the most serious offence, and for it then to be repeated precisely when that person is on bail, can cause a strong belief in the public that the law is simply being made a fool of.

I do not accept that the proposed limitation is sensible. However, I hope that noble Lords will be reassured to hear that the right for the prosecution to appeal against a grant of bail is not used in a wide or cavalier fashion. On the contrary, the internal guidance provided within the Crown Prosecution Service recognises that the right to take a case to appeal should be used judiciously and responsibly. The most recent guidance produced internally uses the expression—which is why I used it before—that we must look principally to see whether the public need protecting from the defendant. If that test is applied, I hope that it will be agreed that, whether the offence has a maximum of two or five years, it is proper to look to see whether or not this is a case in which bail has been wrongly granted.

Of course, the fact that the prosecution appeals against a grant of bail does not for a moment mean that the appeal will succeed. The outcome is entirely within the discretion and judgment of the court to which it goes. If the court takes the view that it was entirely right and proper to have granted bail, it will say so and will no doubt go on to make some comment about the desirability of the appeal having been brought in the first place.

I hope that my remarks on the Crown Prosecution Service approach will give some comfort to the noble Lord. It is unnecessary to limit the provision in the arbitrary way proposed in the amendment.

7 Jul 2003 : Column 122

Lord Hodgson of Astley Abbotts: I am grateful to the noble and learned Lord for his response and to the noble Lord, Lord Thomas of Gresford, for his support. It is always helpful, as a non-lawyer, to have a lawyer giving me some practical examples.

I listened carefully to the Minister's remarks, and I accept the statistics that he repeated. However, when Ministers reach for phrases such as "internal guidance" and say that we do not have to worry about this draconian legislation because of such guidance, I am less impressed. We are really talking about how the measure will work. It is quite a re-balancing of the system, and we were trying to find a balance at another point on the fulcrum. To return to the cricket analogy, if the Minister's earlier comments were a drive through the covers for four, this was a dab down to third man for a single.

We should like to read what he said, discuss it with some of the expert bodies that have briefed us on this point, and consider whether we want to return to the matter at a later stage. In the meantime—

Lord Thomas of Gresford: Before the noble Lord withdraws the amendment, as he appears about to do, and in answer to the noble and learned Lord, I remind him that paragraphs 175 and 176 of the Auld report's recommendations stated:

    "Magistrates and judges in all courts should take more time to consider matters of bail . . . Listing practices should reflect the necessity to devote due time to bail applications and allow the flexibility required for all parties to gather sufficient information for the court to make an appropriate decision".

The Auld report itself says that we should take more time over bail applications and, no doubt, more time over appeals on bail applications.

Lord Goldsmith: I was going to make an offer to the noble Lord, Lord Hodgson, but I shall comment on what the noble Lord, Lord Thomas, has just said. Nothing that I have said for a moment suggests that we do not want each court that deals with a bail application to consider it fully and properly and to take the time that is necessary to do so. I do not understand why it is thought that the comments made sensibly, if I may respectfully say so, by Lord Justice Auld undermine what I have said about the prosecution right of appeal.

My offer to the noble Lord, Lord Hodgson, is the following. Among the expert bodies that we would like to consult I should be happy to meet with him and others to talk about the way that the Crown Prosecution Service, which is the department for which I am ministerially accountable, exercises the powers that we are discussing. That may help the noble Lord reach a view about the way that this power—I do not accept that it is a draconian power—of appeal (it is no more than that) will be exercised.

7 Jul 2003 : Column 123

Next Section Back to Table of Contents Lords Hansard Home Page