§ [No. 22.]
Schedule 1, page 15, line 22, leave out paragraph 5 and insert—
'5. The defendant need not be granted bail if, having been released on bail in or in connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of this Act.
§ Exceptions applicable only to defendant whose case is adjourned for inquiries or a report
§ (5A) Where his case is adjourned for inquiries or a report, the defendant need no: be granted bail if it appears to the court that it would be impracticable to complete the inquiries or make the report without keeping the defendant in custody.'
§ Lord HARRIS of GREENWICH
My Lords, I have already spoken to this Amendment. I beg to move that this House doth agree with the Commons in their Amendment No. 22.
§ Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
§ 7.37 p.m.
§ Lord FOOT rose to moved, as an Amendment to Commons Amendment No. 22:
§ [No. 22A.]
§ At end insert ("and it shall not be regarded as impracticable unless at a hearing at least 8 days after conviction a probation officer or other court officer has testified that it has been impossible to make arrangements for the report to be made on bail within the next two calendar months.")
§ The noble Lord said: My Lords, I wonder whether I could take a few moments. I do not want to delay the House unnecessarily at all, but I should like to explain and remind ourselves how we have reached this present situation. As the noble Lord, Lord Harris, said earlier on, it is correct that at the Third Reading of this Bill in this House he gave undertakings in regard to two matters that the noble and learned Lord, Lord 531 Gardiner, and I had raised during the course of the passage of the Bill through the House. The noble Lord gave under-takings that he would move Amendments, or Amendments would be moved in the House of Commons, to try to meet the arguments that we put forward.
§ The two matters which the noble Lord said he would look at were, first of all, this business of extending the presumption of bail in favour of convicted people whose case is being adjourned for a report on inquiry, and the second was the question of whether limitations could be put on the powers of the courts to remand people in custody when a person was accused, or convicted, of a non-imprisonable offence.
§ It is only right to acknowledge that the noble Lord has made good both those undertakings, and indeed has gone further than that, because in the Third Reading debate the noble and learned Lord, Lord Gardiner, and I, less vociferously perhaps, expressed anxiety and concern about the Government's intentions as to the way in which they were going to extend the presumption of bail to convicted persons. The noble Lord had indicated to us then what the Government had in mind. The noble and learned Lord, Lord Gardiner, and I, expressed considerable anxiety about two of the exceptions which the Government had in mind as qualifying this new extended right. It appears from my reading of the Bill as it now stands, and as it has been amended in the other place, that the noble Lord has paid heed to the anxieties which we expressed on that occasion and has gone a long way towards meeting the alarms which we felt.
§ The first of the exceptions which the Government had in mind to bring in provided that a court need not give bail to a convicted person whose case was being adjourned for a medical report if they considered that that person might be mentally disordered and in need of inpatient hospital treatment. We saw manifest objections to that. It seemed almost incredible that if a court were thinking that a person was mentally disordered and in need of inpatient treatment they should pack him off into a prison. I am glad to see that that exception which the Government had in mind at that time has disappeared.532
§ Secondly, the Government have redrafted the other qualification or exception which they had in mind to which we saw objection. The original words about which the Government were talking when the Bill was in this House were that the court need not grant bail if the court had it in mind to pass a custodial sentence subject to the contents of the report which it had called for.
I will not weary the House with the criticisms that the noble and learned Lord and myself made of that provision when it was in the House; but clearly the Government have had further thoughts about it and the way in which that exception now appears in the Bill reads:
Where his case is adjourned for inquiries or a report, the defendant need not be granted bail if the court has decided to impose a sentence of imprisonment unless it is induced not to do so by the matters disclosed by the inquiries or contained in the report.
If I understand that aright, it is an improvement, although it does not go all they way to meeting our objections, because it makes it essential, before the court can say "No, no bail", positively to determine that they will send him to prison unless the report induces them to do otherwise. I think that is an advance and I will not say more about it except that it will be interesting to see how it works out in practice. If it does not work and if it goes wrong, I hope that, in the course of time, the Government, whatever Government may be in power, will have a look at the matter again.
I come specifically to my Amendment because at Schedule 1(8) we now have a new exception, something that has not been canvassed in the House before. The Government are proposing:
Where his case is adjourned for inquiries or a report, the defendant need not be granted bail if it appears to the court that it would be im-practicable to complete the inquiries or make the report without keeping the defendant in custody.
Prima facie that is not an unreasonable proposition; it would be a little idiotic not if we were to compel a court to grant bail in a case where the granting of the bail would prevent the court from getting the report it wants. That would be rather stupid and therefore on the face of it this is a sensible provision. However, I wish to draw attention to what I believe to be a lurking danger in the Bill and a danger of considerable importance and magnitude.
If we say to a court that it is to consider whether it is impracticable for a report to be produced on the person concerned if he is not in custody, that presupposes that all courts at all times are familiar with and informed about the in-patient hospital facilities for examination and report. That is not only fanciful but manifestly untrue.
§ Any practising lawyer, and there are, if not at the moment, many in this House—certainly there are magistrates and per-sons who have sat as crown court judges and we have two former Lord Chancellors present—knows that in the ordinary way magistrates courts and indeed crown courts have only the haziest notion of what hospital facilities there are available for preparing reports without the person being put into custody. Indeed, why should a bench of magistrates be expected to know precisely what facilities are available in their neighbourhood in order to get a report on a particular defendant? Even if we have the most assiduous and careful magistrates, as we often have, who try to inform themselves of the general medical facilities available for getting reports of this kind, they cannot know whether the facilities are available for giving them a report on the particular defendant who is in front of them because his problem may be something which is not entirely in the ordinary run.
It is in my view an all too common belief on the part of many of the courts in this country that one can get a better report if one puts the person under custodial observation. I am not an authority on this and I will not go so far as to say that I believe that to be a delusion, but I remind the House of what the Working Party said about this matter. It said that it was a very difficult matter—this question of trying to decide on the desirability and usefulness of putting a person in custody in order to get a medical report—and it drew attention to the fact that medical opinion in this country is very sharply divided. It went on in paragraph 152 of its report:
There seems to be general agreement, however, that some of those persons at present remanded in custody for medical reports could equally well be remanded on bail for this purpose if they are, too, suitable on other grounds. A difficulty which the magistrates face is in having to decide without medical assistance which of such cases are suitable for bail and which are not. It seems to us that it would he of assistance to the magistrates if they had medical advice available to them
for this purpose. It might be possible in difficult cases to remand the defendant in custody for a short period, of perhaps two or three days, to enable the prison medical officer to say whether the case was suitable for a report on bail.
I emphasise the next sentence:
Usually in borderline cases, however, we doubt whether much harm would be done by giving the defendant the benefit of the doubt and remanding him on bail, given the deleterious effect of custody.
§ I remind the Houset of that quotation because it clearly points to the fact that it is all too easy for a mistake to be made by magistrates and for them to pack off to prison somebody who on psychiatric grounds should never go near a prison. My Amendment follows on the thinking of that paragraph and suggests a solution which I think is a little less difficult than the proposal made by the Working Party; that one might get a man remanded for two or three days. I think that would he falling between two stools and we should have the worst of two worlds; the chap would go to prison and it might be found at the end of three days that it was wholly wrong for him to have gone there. I have—or those advising and helping me have—sought to devise a formula which will enable this practical difficulty to be overcome.
My Amendment would add words to paragraph 8 of the Schedule and I will read them together, when the House will immediately see what my Amendment seeks to do. It would read like this:
Where his case is adjourned for inquiries or a report, the defendant need not be granted bail if it appears to the court that it 'would be impracticable to complete the inquiries or make the report without keeping the defendent in custody.
And here is my Amendment—
and it shall not be regarded as impracticable unless at a hearing at least 8 days after conviction a probation officer or other court officer has testified that it has been impossible to make arrangements for the report to be made on bail within the next two calendar months.
§ May I briefly explain how I think that would operate in practice? The court has convicted someone, and they have come to the conclusion that they want a social inquiry report or a medical health report and they decide to adjourn the case for that report or those inquiries to be made, what is the question they then have to ask? The first question is: is this chap eligible or ineligible for bail under the general provisions of Schedule 1? They also have to ask: is he liable to 535 abscond? Is he liable to commit other offences? Is it necessary to put him in custody for his own safety and protection? If the answer to any of those questions is Yes, then they are perfectly justified in remanding him in custody and nobody complains about that. But if they come to the conclusion that the answer to all those questions is, No and, therefore, he is a perfectly good "bail risk", if I may put it like that, they must say to themselves, "Now we must adjourn the case, let him out on bail and get a probation officer or other court officer to let us have a report after the lapse of eight days as to whether it is practicable for him to be examined, and the report to be obtained while he is at large".
§ I suggest that this is not only a practicable thing to do, but that it evades the terrible risk that magistrates, and indeed Crown Courts, without that advice from a probation officer or other court officer cannot decide for themselves whether or not it is practicable to obtain the report, because very often they have not got the necessary information to do it. The great temptation is that the magistrate will take the easy way out and say, "We do not know whether it is practicable, but we had better decide that it is impracticable and put him in custody".
§ I do not know whether I am pressing this Amendment. I have not seen any very encouraging signs from noble Lords. I say that because, in the other place, when an Amendment not wholly dissimilar from mine was moved, the Government, through Dr. Summerskill, expressed themselves sympathetic to the objectives of the Amendment, but took the view—rather surprisingly to my mind—that this could he dealt with by way of a Home Office circular. I gravely doubt whether that meets the case. I suppose everybody knows how easy it is for Home Office circulars to be overlooked or pigeonholed and forgotten. On the other hand, if you write the thing into the Statute it is inevitably brought to the attention of magistrates whenever they have to deal with a case of this kind.
§ I suggest that it is not reasonable to expect that every magistrates' clerk, however assiduous he may be in the performance of his duties, has at his finger tips all the Home Office circulars that 536 have been issued from time to time. If the Government insist upon the circular, it is inescapable that serious wrongs will be done. I hope it is not extravagant for me to remind the House that this Bill is about basic human liberties and human rights. If you are going to try to deal with this matter by way of a circular, there will inevitably be those occasions when by oversight or mistake, the magistrates' attention is not drawn to what Parliament wants them to do and they will do the wrong thing. On the other hand, if you take the simple course of writing into the Bill the five lines of my Amendment, then you will ensure that on every occasion when this situation arises it is brought to the attention of the court. This is a matter of serious basic human rights and liberties. I do not know how it comes about that those basic rights should in the end depend on whether a circular has been brought to the attention of the court. I suggest that that is un-satisfactory and that the satisfactory way of dealing with this matter is the simple course of writing it into the Bill.
Amendment to Amendment moved—
At end insert ("and it shall not he regarded as impracticable unless at a hearing at least 8 days after conviction a probation officer or other court officer has testified that it has been impossible to make arrangements for the report to be made on bail within the next two calendar months.")—[Lord Foot.]
§ Lord GARDINER
My Lords, I should like briefly to support the Amendment moved by the noble Lord, Lord Foot, because he very lucidly explained to us his objectives in moving the Amendment. I am afraid that perhaps I am rather old-fashioned concerning the last point he mentioned, regarding Home Office circulars. I prefer things to be a matter of law rather than by way of a Departmental circular. The Minister said that she entirely agreed with the objective and that the only difference seemed to be whether it should be in the Bill or should be dealt with by Home Office circular. The last time I made inquiries it seemed to me the practice in magistrates' courts—of which undoubtedly the noble Lord, Lord Foot, knows a great deal more than almost anybody in the House—varies very much. I believe there are justices' clerks who give copies of such circulars to the justices. Others may read out at a meeting the parts about which they think the justices 537 ought to know, there are some who do not read it out but give their own interpretation of what the circular amounts to, and I am afraid on occasions there are justices' clerks whose circulars simply remain in a drawer in a desk. In view of the small difference there appears to be, I very much hope that the House, including my noble friend Lord Harris of Greenwich, will accept this Amendment.
§ 7.58 p.m.
§ Lord HARRIS of GREENWICH
My Lords, certainly I can start by saying that the Government sympathise with the motives behind this Amendment in so far as it is relates to the aim of reducing the number of defendants remanded in custody while reports are prepared. The noble and learned Lord, Lord Hailsham of Saint Marylebone, on an earlier Amendment said that there was something of an obsession in the Home Office about dealing with the size of the prison population—I am sure he said that in a spirit of fun. It is indeed true that there is such an obsession, and it is right that it should be so. We have a prison population of nearly 42,000. We have, quite properly, stringent controls on the level of public expenditure. There is no way, even if it were desirable, of substantially increasing the number of places in our prisons, and when one sees the circumstances in which people are maintained in prison today the situation is profoundly unsatisfactory.
However, having said that, our anxiety about this Amendment is as follows: Our difficulty is that we believe that the practical effect would be to delay to some extent the final disposal of the case without actually reducing the number of remands in custody for reports. A similar provision about impracticability was included in Section 18 of the Criminal Justice Act 1967. It is retained in this Bill because, as has been pointed out by magistrates' associations, it unfortunately remains true that in some parts of the country medical facilities outside the prisons are not available—or at any rate are not adequate to enable a medical report to be prepared within a reasonable time.
The Amendment of the noble Lord, Lord Foot, inserts a specific test which would be applied in each case, but in fact the difficulty about obtaining reports relates not to the particular defendant, as I believe 538 he suggested, but more often to the locality; and it would thus be known to the court if medical facilities locally were not adequate—as in many areas they are not—to deal with this sort of problem. If this were a specific procedural requirement, it would have a number of clearly undesirable consequences. First, it would be known—I do not think that there is a great deal of mystery about it—in a particular locality, that it was impracticable to obtain the reports on bail within a reasonable period. Yet in such a situation the probation officer or the court officer would still be obliged to make detailed inquiries on every occasion. He would in fact be under a statutory obligation so to do even if he knew that there were no facilities available. It would, in fact, be something of a charade. But, if he did not make inquiries and this was brought out by counsel for the accused, this could raise very serious issues. All I am saying to emphasise this point is that, at a time when the Probation Service and the court service are operating under extreme pressure, I do not believe that it is appropriate to write this scheme into the Statute Book.
The Government—and I, as Minister at the Home Office with responsibility for the Probation Service—have made it quite clear that, at a time when where there is very substantial pressure on resources, we shall not impose new statutory burdens on the Probation Service. This would be a quite significant burden upon that Service or, if it did not fall upon the probation officer, on the court officer. The same constraints on public expenditure apply in that case as they do in the Probation Service. A further objection is that, in the cases to which the Amendment would apply, at least one extra court appearance would be necessary—not less than eight days after conviction—and thereafter, if bail were granted, there could be a further delay of up to eight weeks, resulting in a delay between conviction and sentence of nine weeks in all in addition to the time taken to reach conviction stage.
As the noble Lord, Lord Foot, has pointed out, an Amendment on similar lines was moved during the debate in another place. It was withdrawn following an undertaking by my honourable friend the Under-Secretary of State at the Home Office that the courts would be recommended by circular to seek all available 539 information—in particular any information which the Probation Service could supply on whether there was a practicable alternative to a custodial remand.
I wholly understand the point made by my noble and learned friend Lord Gardiner that he would prefer to act by Statute rather than by circular, but, as I have endeavoured to make clear, there are, in our view, real difficulties about this Amendment though there is no difference between the noble Lord, Lord Foot, and ourselves as far as our aim in this matter is concerned. Dealing with his closing point on the question of the Home Office circular, I hope that what I shall have to say to some extent meets the point made by my noble and learned friend. The noble Lord, Lord Foot, said that Home Office circulars could be overlooked and my noble and learned friend implied the same. Clearly, in certain cases, this may be true; nevertheless, it is desirable to point out what happened in 1975. Then, in the final quarter of the year, following the issue of the circular on bail procedures in October 1975, receptions of untried remand prisoners (which, during the first three quarters of 1975 were higher by 10 .2 per cent., 7.6 per cent. and 8.6 per cent. respectively compared to the corresponding three quarters of 1974) fell by 9.7 per cent., and that was following three quarters in which substantial rises had taken place. I do not feel that I can totally dispose of the argument of the noble Lord, Lord Foot, that a circular may be overlooked, but I believe that this example gives a fairly significant amount of evidence to show that Home Office circulars have a considerable effect so far as magistrates are concerned. I believe that this is the way to deal with the matter.
I have attempted to point out that though I recognise the sincerity of the noble Lord, Lord Foot, in moving the Amendment, I do not believe that his aim would be met by it and I think that it would impose a further statutory burden on the Probation Service and the court service. As I have indicated, I do not feel that it is appropriate to put new burdens on these services at a time when there is extremely harsh restraint on public expenditure.
§ Lord FOOT
I shall not weary the House with more than a few observations. I have listened with every care to the noble Lord's argument and I am still mystified by the fact that he says that the Government are going to deal with this by way of circular. What will the circular say? Will it say that it is desirable when a court is presented with a situation of this kind for it to seek the advice of probation officers or other court officers as to the practicability of getting a medical report without sending the man to prison? If so, in what way does that differ from imposing an obligation to do it by way of my Amendment and under the Statute? If the circular is merely to be a piece of advice without any kind of sanction to back it up, and if the magistrates can disregard it should they wish, it will really not achieve any particular purpose.
Earlier in the year when the Bill was being discussed, I drew attention to the astonishing figures found by the Working Party when they examined the situation in 1972. They found that in that year 23,885 people were received into custody after conviction and before sentence. That was the dimension of the number of people who are sent to prison and of that number the even more remarkable figure is that in the same year—1972–12,437 people were remanded in custody by all courts specifically for mental observation or state of health reports. We have no figures as to the numbers of those people who were not sent to prison afterwards.
That is the dimension of the problem, and I revert to what I said at the conclusion of my earlier remarks. I am afraid that if the Government are to try to deal with this by circular, it will be absolutely inescapable that some mentally disturbed people—people whom Parliament would never want to see sent to prison at all—will be sent to prison for the purpose of a medical report, simply because the magistrates will not have had it brought to their attention that they ought to get somebody to investigate for them whether facilities for an extra mural examination are available. That will happen. It will mean that next year hundreds or thousands of people who are mental patients and who may be overwhelmingly damaged by a taste of imprisonment will certainly be sent into prison because the magistrates will not 541 be under the duty of investigating through the probation officer whether extra custodial facilities are available. I am afraid that that is an inescapable conclusion, and I should not like to be responsible for carrying through an Act without including the safeguard which I have attempted to indicate. I do not propose to try to move this to a Division. Therefore I beg leave to withdraw the Amendment.
§ Amendment to Amendment, by leave, withdrawn.