Skip to main content

Bail Act 1976 Not To Apply To Murder Or Rape(No 1)

Volume 113: debated on Tuesday 31 March 1987

The text on this page has been created from Hansard archive content, it may contain typographical errors.

'(1) Subsection (2) of section 4 of the Bail Act 1976 shall be amended by inserting after the word "offence", in the first place where it occurs, the words "other than murder or rape".'.— [Mr. Peter Bruinvels.]

Brought up, and read the First time.

With this it will be convenient to take the following: New clause 15—Bail Act 1976 not to apply to murder or rape (No. 2)

'Where a person is brought before a magistrates' court or the Crown Court charged with the offence of murder or rape and he applies to the court for bail in connection with the proceedings, and where objection is made by the police to such an application, that person shall not be granted bail.'.
New clause 17— Bail in cases of homicide and certain other serious offences
'After paragraph 3 of Schedule 1 to the Bail Act 1976 there shall be added the following:
"3A. In every case where the defendant is charge with murder, attempted murder or an offence contrary to section 18 of the Offences Against the Person Act 1861, any bail application shall be heard before a judge sitting in the Crown Court in open court, and before granting bail the judge shall certify in relation to the defendant that:—
  • (a) he has a settled address;
  • (b) he has surrendered his passport (if any);
  • (c) he has not been convicted of any of the offences described above;
  • (d) there are not substantial grounds for believing that he would fail to surrender to custody;
  • (e) there are not substantial grounds for believing that he would interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself of any other person;
  • (f) there are not reasonable grounds for believing that he would commit an offence while on bail.".'.
  • New clause 22— Restriction of bail on indictment
    '(1) Notwithstanding the provisions of section 4 and Schedule 1 of the Bail Act 1976, no person indicted on a charge of murder shall be released on bail.
    (2) No person with a previous conviction for an indictable offence shall be released on bail without the consent of the Crown, when charged with a further indictable offence.'

    Following the Winston Silcott case, when Silcott was sentenced to a minimum of 30 years' imprisonment for murdering PC Blakelock and the headline in the Daily Telegraph stated:

    "Pc Blakelock's killer was facing fourth death trial",
    the House must be asking itself: has the Bail Act 1976 failed? The importance of any court decision in granting bail cannot be exaggerated. It is the duty of any court considering a bail application to balance the liberty of an unconvicted individual, who while awaiting trial is, of course, presumed innocent, against the requirements that those charged with criminal offences are duly brought to trial and the public protected.

    The factors influencing the exercise of this discretion are encompassed in the Bail Act 1976. That Act placed a duty on the court to grant bail to an accused appearing before it. The presumption of bail can be overridden where the court is satisfied that the accused will abscond, will commit further offences on bail, will interfere with the course of justice or, more importantly, where there are fears for the defendant's safety. The establishment of any one of those four factors to the satisfaction of the court will usually be enough to result in the accused person being remanded in custody, as should have happened in the Winston Silcott case.

    The report on bail procedures in magistrates courts which was published in 1974 makes it clear:
    "When an unconvicted person is remanded or committed for trial, there should be a presumption in favour of his being granted bail."
    A Bail Act press release, issued by the Home Office on 17 April 1978, made it clear that the
    "primary purpose of the Act is to improve the quality of bail decisions. It is hoped that this will help to eliminate unnecessary remands in custody and thereby reduce prison costs and relieve some of the pressure on prisons resulting from the increased rates in serious crime."
    Hon. Members will not he unnecessarily concerned about whether prisons are crowded or overcrowded; they will he more concerned about whether the right kind of person is granted bail when necessary, and whether or not the police object. Although there may be a saving in court time, with fewer remand hearings being necessary, the court must retain full powers to order that those who seem likely to abuse bail or to be a danger to the public are kept in custody until their trial.

    The Bail Act has created. I believe wrongly, a statutory presumption in favour of the grant of bail, by providing that, where a person is before a court and is charged with or convicted of an imprisonable offence and a remand is necessary, the court must remand him on bail unless satisfied that there are substantial grounds for believing that the defendant, if released on bail, would abscond, commit offences while on bail or otherwise interfere with the course of justice.

    The primary purpose of the Bail Act appears, therefore, to be to improve the quality of bail decisions by setting out more clearly the questions to which the courts should address their minds when taking these decisions and, by improving the procedure, to ensure that these matters are considered at the right time. But it has become a bail lottery. I believe that a person charged with the offence of rape or murder should not be entitled in any circumstances to hail. Strangely, because of the bail lottery system, there is not consistency in practice. Anomalies strike at the heart of the criminal justice system. It is well known that the courts' proportionate use of custody for convicted offenders varies greatly from one court area to another.

    I have itemised the presumption of bail, why it is allowed, the likelihood of the accused absconding, the likelihood of him committing further offences while on hail and the likelihood that he will intimidate witnesses or interfere with the course of justice, which were involved in the Winston Silcott case. There might also be fears for the accused's safety.

    The proportion of those charged with indictable offences who are granted bail has risen slightly since the implementation of the Act, although there are no conclusive records. In 1979, 83 per cent. were granted bail and in 1984 86 per cent. In Leicestershire, 78 per cent. of those charged with indictable offences were put on bail.

    On 20 June 1980 Sir David McNee, the Commissioner of Police, made it clear that he was fearful about the misuse of bail by criminals. The nature and gravity of charges must be considered in the decision whether to grant bail. On 9 May 1983 Lord Hailsham, speaking to a group of magistrates, said that the greatest caution should be exercised before granting bail to defendants facing grave charges, such as murder, rape or wounding with intent, and that if the provisions of the Bail Act were applied properly,
    "only in exceptional circumstances would one expect bail to be granted to a person charged with murder, rape, wounding or other grave crime."
    My new clause makes that point clearly.

    12 midnight

    On 8 May 1983, The Observer reported that Lord Hailsham, giving advice on bail, discussed the controversy over the case of a double rapist who while on bail murdered a housewife on Humberside. On 21 March 1987 the Leicester Mercury reported that he warned:
    "I always was afraid that people would have to be bailed, if the Bail Act was passed, in circumstances where there was a serious danger that offences might be committed while the charged person was on bail. This, of course, is what has happened in this case."
    He referred to the case of Winston Silcott, who was freed to kill again. He made it clear that the Bail Act must be changed. An article in The Independent states that although there was a lack of information offered in the Silcott case
    "the Lord Chancellor insisted: 'I did warn the House of Lords when it went through that they had put it so strongly in favour of giving bail that they would find people committing offences when they were out on bail.'"
    The two grounds given in the Silcott case were that he might abscond and that he might interfere with witnesses. It is significant that it was not mentioned that he might commit another murder.

    On 21 February 1987 The Independent reported:
    "There have been two recent examples where alleged rape victims have been killed by those accused of the rapes while out on bail. They were given their freedom by magistrates."
    In The Sun, Mr. John Kay itemised four cases of repeat murders and four cases of repeat rape while the accused were on bail. They were John Wrigglesworth on a murder charge, Ian Sherlock on a murder charge, David Swan on a rape charge, Michael Halt on a murder charge, Archibald Cummings on a rape charge, Anthony Elliot on a murder charge, Christopher Meah on a rape charge and Jim Smith on a rape charge.

    Judges and magistrates are expected to use their discretion when considering bail applications for serious charges, such as rape and murder. New clause 14 provides that no bail should ever by granted to those charged with murder, rape, or attempted rape or murder. In other cases., judges and magistrates may grant bail. Similarly, under new clause 15 it would be possible for those charged with murder, for example in a domestic case, to be allowed out on bail, if the police did not object. Provided the police did not object, those charged with murder or rape would he allowed out on bail.

    There has been great abuse in particular rape cases. On 24 March 1987, The Guardian reported that a person on bail on a murder charge was found hanged. The police had been fearful for his safety and that he might do damage to himself, but he was still allowed out on bail. Anybody who is suspected of murder should not be given bail in any circumstances.

    The Home Secretary said that defendants are suspected of committing murder but have not been convicted and may be acquitted subsequently. That is right, but it is not necessarily satisfactory. Trials should be speeded up. Courts should not be inhibited in granting bail, whether or not there are 50,000 people in prison. Judge Robert Lymbery QC, as Lord Hailsham said, was probably right in his decision in the Silcott case. It grieves me to say that, because PC Blakelock lost his life through Silcott being let out. There is a connection. However, Lord Hailsham said that freedom of action was curtailed by the Bail Act, but Judge Lymbery said that he was given as "many" facts as he was able to ascertain.

    Will the hon. Gentleman tell us why he would allow bail to people who are charged with attempted murder? The intention required for the commission of an offence of attempted murder is specifically that of guilt, whereas for murder it can be merely the intent to cause serious injury.

    I am not in favour of bail being granted in either case. I have every confidence in the police presenting their case once they have brought the case to court. People who have a history of evil intent, and who are charged with murder or rape, should not be granted bail until they have appeared in court and have been successfully prosecuted or legally acquired. No one who is accused of murder should be allowed bail. I have raised this matter with various Law Officers and Home Office Ministers.

    It is an error of judgment to allow out on bail people who are accused of murder. Far too many people are allowed out on bail when the offences against them are serious. I have asked my hon. Friend to consider amending the law so that persons who are accused of murder and rape may not be granted bail under any circumstances. I am hopeful that that will be looked into again. The Minister of State said in a written reply to me that he is looking at the events that led to the granting of bail to Winston Silcott.

    Retrospective studies are necessary. We have none at the moment, and we need them. Information must be collected centrally. We should look carefully at these two amendments. The public are outraged that potential murderers are allowed out on bail. The judge probably does not know best, but the local police do. If the police object to bail being granted in any case, I would give more credibility to the men on the beat than to a judge, who may be in the Old Bailey, very remote from the case. These two new clauses give the House an opportunity to test the water. I urge that they be considered today.

    I shall speak briefly to new clause 17, which appears in my name and those of my hon. Friends.

    The Silcott case has given rise to perfectly legitimate public concern about what happened in that case and what might happen in similar instances where people are charged with murder or very serious offences of violence and commit offences while they are on bail. It is possible to give a just and measured response to the public concern that has been expressed.

    The first thing is that we should make the scrutiny of bail applications much clearer and more effective. In the past 16 years bail applications in most, if not all, Crown courts have been heard in chambers. There have been many complaints about this, and The Independent has recently been running a campaign to draw special attention to the unjustifiable secrecy in many forms of hearing, including bail applications.

    I can think of no good reason why bail hearings should not take place in open court, so that they can be scrutinised properly, and so that comment can be made upon them. It may be that there are good reasons why the comment cannot be made at the time of, or immediately following, the application, for that might prejudice a fair trial. At the moment there is a great deal of dissatisfaction because one is not able to find out what happened at the hearing in chambers. The Silcott case is an example of that. It is regrettable that the judge had to deal with it in the way that he did. The only way in which he could bring to public attention what had happened was by making the sort of statement that he made. That would not be necessary if bail applications were made in open court.

    Is the hon. and learned Gentleman aware that on 18 July 1976, when this matter was being considered, the proposal of the Lord Chancellor that the words "unacceptable risk" should be retained in the Bill was defeated by an amendment that was moved by the Government, supported by the hon. Members for Cambridgeshire, North-east (Mr. Freud) and for Stockton, South (Mr. Wrigglesworth), who are members of the hon. Gentleman's alliance? They bear a heavy responsibility for the change in the law that was achieved in Committee, as a result of which the Silcott affair took place.

    I was talking about an entirely different point. I gave way to the hon. Gentleman because I thought that his intervention would be relevant. We all learn by our mistakes. I was not a Member of the House in 1976, nor was the hon. Gentleman. We do not know how either of us would have responded to that provision. It is no use the hon. Gentleman wagging his finger in that offensive manner, because he knows what I have just said to be the case.

    In an attempt to be helpful, I am suggesting that not only could the scrutiny of these bail applications be made much more effective if they were heard in open court—I hope that that is a proposal to which we shall have a considered response from the Minister—but we could slightly dilute the grounds or the considerations to which the court must have regard under the Bail Act in those cases where the charge is one of murder, attempted murder or a serious offence of personal violence, contrary to section 18 of the Offences Against the Person Act.

    Under the Bail Act, the judge is required to grant bail, but only if a number of conditions are satisfied, including the fact that there are not substantial grounds for believing that the accused would commit an offence while on bail. If that word "substantial" were altered to "reasonable", so that not quite as high a test had to be applied by the judge when he was considering whether to grant bail, in a case within the restricted categories that I have mentioned, that would give a sensible extra measure of protection to the public. The extended grounds set out in new clause 17 would meet the concern that is expressed, without going to the unfair and absurd extremes suggested in new clauses 14 and 15.

    It is shocking when someone who is on a serious charge is given bail and then kills. The question is whether we need to do anything about the existing law. Although I see from the report of the Bail Act debated in 1976 that I did not welcome it and thought that it was unnecessary, and I said:

    "I do not welcome any legislation which will not remedy positive evil or do positive good. We spend too much of our time churning out legislation which will not achieve anything very much."—[Official Report, 26 May 1976; Vol. 912, c. 546.]
    the fact is that maintaining the status quo is the best way to deal with the problem. Therefore, I support new clauses 14, 15 and 22. New clause 17 detracts from the present law.

    12.15 am

    The existing law gives ample scope to deal with bail in very serious cases, notwithstanding some of the reports in the newspapers at the time of the Silcott case. Not only does schedule 1(1) to the Bail Act set out eight circumstances, with which I need not detain the House, when bail can be refused, but it goes on to say:
    "In taking the decisions required by paragraph 2"—
    the exceptions—
    "the court shall have regard to such of the following considerations as appear to it to he relevant, that is to say—
  • (a) the nature and seriousness of the offence of default …
  • (b) the character, antecedents, associations and community ties of the defendant…
  • (c) the defendant's record as respects the fulfilment of his obligations under previous grants of bail…
  • (d) except in the case of a defendant whose case is adjourned for inquiries…the strength of the evidence of his having committed the offence or having defaulted "
  • and it adds:
    "as well as to any others which appear to be relevant."
    It seems that the judge in any case of seriousness has complete power to say, "No, this is not a case for bail."

    The trouble with depriving someone of bail for murder or any other offence is that the offence of murder may be reduced to manslaughter, or it may be a mercy killing, or it may be the sort of offence where the person does not get sent to prison for long or at all. Think, then, of the iniquity of keeping someone in custody for 12 months because, by law, he must be refused bail when, at the end of the day, he is acquitted or is placed on probation or is given a sentence substantially less than 12 months. For those reasons, astonishingly, I support the Government tonight.

    This debate almost certainly would not be taking place if Keith Blakelock had not been murdered on Broadwater Farm. I went to the farm the following evening and spent a lot of time with the police there. It is the view of many Metropolitan police officers that he did not need to die. It therefore came as a shock to many of them to learn that his killer was a man out on bail.

    The Home Secretary was wise to avoid joining in the national furore that arose immediately in the press, and I congratulate him on having paused, reflected and then given a lead in his statement on television.

    I hope that we shall hear from the Government tonight, not that they support the proposed new clauses—because in my view they are not appropriate in the circumstances—but that the reflections of the Home Secretary on this issue will bring forward new proposals so that hopefully—nobody can be sure—the kind of problem that we saw with the death of Keith Blakelock will not recur in this country.

    I congratulate my hon. Friend the Member for Leicester, East (Mr. Bruinvels) on having given us the opportunity to discuss the working of the Bail Act.

    I shall make a few general points before dealing with the questions that have been posed. Leaving aside the tragic case with which we are concerned, the problem with the Bail Act has been the large and increasing number of persons held in custody pending trial.

    The figures are really alarming. Between 1945 and 1965 the remand population was about 6 per cent. of the prison population. By 1976 the remand population had risen to 9 per cent. of the prison population, and by 1985 it had risen to 18 per cent. of the prison population. The latest figures are that at the end of January 1987 the prison population was 47,200 and the number of untried prisoners within the prison system was 9,000, or 19 per cent. So the problem in very general terms about the Bail Act 1976 has been the very large number of unconvicted persons who are held in custody.

    I should stress that the great majority of those who have been charged with murder or attempted murder are remanded in custody. The figures show that 87 per cent. of those charged with murder and 83 per cent. of those charged with attempted murder are remanded in custody. I feel that generally speaking that is right. However, the fact that Silcott was on bail and that that fact contributed to the death of PC Blakelock is a matter of great concern and worry to us all. Plainly, we have to consider whether it is right to make statutory changes. Equally plainly, it should be possible to make changes to the Act that would reduce the risk of such a tragedy happening again.

    I suggest that the Government need first to examine very carefully the working of the Act and also the events surrounding the particular case in order to try as best we can to determine whether what happened points to some defect in the statute, some defect in procedure, or some other error. We propose to go forward urgently intent on scrutinising what happened in an anxious and careful manner. I hope that in the not too distant future—indeed, quite soon—the Government will be able to come forward with their conclusions. If we think that statutory changes are necessary, we will make proposals to the House for consideration.

    The new clause moved by my hon. Friend the Member for Leicester, East would, of course, prevent the granting of bail for those charged with murder or rape. The effect of his new clause would be to put a total and absolute bar upon the granting of bail in those circumstances. That is not a proposal that I would commend to the House. I entirely share the views put forward by my hon. and learned Friend the Member for Burton (Mr. Lawrence) and I will remind the House very quickly of them.

    There is a presumption of innocence. People are to be presumed innocent until they are found guilty. That presumption of innocence argues strongly in favour of not withholding bail. That is true of murder cases as a proposition, although in the great majority of cases it would be right for bail to be withheld.

    Does my hon. Friend agree with his noble father with regard to the expression that he attempted to insert into the Bill in 1976, that the words "unacceptable risk" were a better choice than the word "probably"? Furthermore, it was, of course, the right hon. Member for Glasgow, Hillhead (Mr. Jenkins), who was then Home Secretary, who was responsible for ensuring that the lesser test was applied when the Bill was ultimately enacted, against the advice of a great number of libertarian Law Lords in the House of Lords, who agreed with my hon. Friend's noble father.

    My right hon. and noble Friend the Lord Chancellor may well have been right. I feel sure that what he said was very wise and was uttered after measured thought. I do not want to pluck out of the air today any particular formula. I merely want to say to the House that the Government are concerned about what has happened. We intend to subject the Act and the surrounding events to careful scrutiny and we will come forward with our conclusions.

    I was seeking to outline the reasons why, in my view at least, it would not be right to impose a total and automatic ban upon the granting of bail to those charged with murder. I was adopting the points put forward by my hon. and learned Friend the Member for Burton. First, there is the presumption of innocence. Secondly, the fact is that a significant number of persons charged with murder are acquitted. In 1984 a total of 22 per cent. of those charged with murder were acquitted of all offences of homicide. A total of 47 per cent. of those charged with murder were found not guilty of murder but guilty of a lesser offence such as manslaughter. There is another consideration. There will always be a small number of offenders charged with murder where the ultimate charge is one of manslaughter, reflecting an offence such as euthanasia. In those cases the courts may well feel that it is wrong in principle to impose a custodial sentence.

    I cannot commend to the court—[Interruption.] It was a Freudian slip. I have always laughed at other barristers to whom it has happened and it serves me right that it has happened to me. Having regard to those serious facts, it would surely be wrong to impose a total and automatic ban.

    The same applies, although for slightly different reasons, to the offence of rape. Again, we have to face the fact that about 26 per cent. of those charged with rape are ultimately acquitted. Therefore, I do not commend to the House the arguments put forward by my hon. Friend the Member for Leicester, East.

    I shall now deal with the arguments put forward by the hon. and learned Member for Montgomery (Mr. Carlile). I accept at once that what he has outlined is a defensible position, save that he is removing from the magistrates court, in respect of the three designated classes, an ability to grant bail. I would differ with him on that point. However, as I have said, that is a defensible position. I cannot say that at this moment the House should come to a conclusion because I would not wish to put to the House a conclusive view as of now. The Government's process of scrutiny, inqury and consideration is not complete.

    In view of the fact that my hon. Friend has used the words "urgency" and "consideration" several times, can he tell the House when he intends to do something? Do the Government intend to bring forward an amendment in another place?

    I cannot answer the question posed by my hon. Friend in the absolute way in which he is asking. He is right to ask the question, but I cannot answer it in the way in which he would like. We are considering whether there is a defect in the Act and whether there are defects in procedures. We are trying to see whether it is possible, by statutory changes, to prevent such tragedies happening again. When we have come to a view on that, we will tell the House or make it known in some other appropriate way. I cannot promise that it will happen at once, although I hope that our view will become known while the Bill is going through Parliament.

    If my hon. Friend is seriously saying, as I understand him to be saying, that he is going to look at the new clause moved by the hon. and learned Member for Montgomery (Mr. Carlile), what concerns me is the suggestion in that clause that applications for bail should be heard in open court. Presumably that implies that it is open to publicity. If that is the intention, I find it difficult to see how it can be done. I have a lot of sympathy with what the hon. and learned Gentleman has said, but it must be clear that we cannot risk bail applications prejudging the defendant or influencing the jury in the subsequent trial.

    12.30 am

    I will give way to my hon. Friend in a moment.

    I entirely agree with the point that my right hon. and learned Friend has raised. I am sorry if I gave the impression that it is likely that the Government will come forward with proposals very similar to those of the hon. and learned Member. That is not the impression that I wish to give. The point that my right hon. and learned Friend makes is right, and it illustrates the great importance of not rushing forward with proposed legislation. I agree with what he says.

    Perhaps I can make a point which will, of course, be absolutely obvious to my hon. Friend. The principal disadvantage of having any form of hearing in open court is that the judge who is deciding whether bail shall be granted or not has to know the previous convictions, if any, of the defendant. That is one of the most important considerations in deciding whether he is likely to commit another offence. It is very difficult to see how it could be possible for a judge to give a considered judgment in open court, while disguising the fact that the accused has previous convictions. I am bound to say that on the occasions when I have applied for or opposed bail it has been done in an informal way, and perhaps at the margin mistakes have been made; but a much greater evil would be done it there were a risk that the accused's previous convictions would become known to the public at large.

    I entirely agree with my hon. Friend. Again, he is emphasising how unwise it would be for the Government to rush forward with statutory proposals. What he has said is right and what my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle) has said is right.

    I am grateful for what the Minister has said. It is obviously said in the spirit of intending to do something about the situation. However, I am concerned about his response to whether bail applications should be heard in open court. Does he not recognise that it is very much a hit-or-miss business now? If a case is put up for plea only or for pre-trial review, the bail applications are all heard in open court in any event; it is only when there are applications which are purely and simply for bail that they are heard in chambers. It is not sensible to say that they should all be heard in open court so they can be scrutinised, bearing in mind what the right hon. and learned Member for Warrington, South (Mr. Carlisle) said, with which I agree entirely, that publicity must be restricted until the trial of the defendant is over.

    I do not disagree with what the hon. and learned Gentleman has just said. All I am seeking to do at present is to tell the House that we are seized of the gravity of this matter. We want to see whether there is a defect in the Act or in the procedure and, if so, whether it would be right to come forward with statutory proposals. At the moment, we have not come to a conclusion. The kind of arguments advanced by hon. Members on both sides illustrate the wisdom of looking at this problem carefully and dispassionately and trying to get it right. That is what the Government will seek to do.

    I cannot commend the new clause to the House, but I would say that we are treating this matter very seriously and hope in the near future to come forward with our own conclusions.

    I welcome the commitment given by my hon. Friend to examine fully the Winston Silcott case and the defects in procedure. I am still concerned about the time limit. I hope that a review of the bail legislation will be undertaken as quickly as possible and that it will be considered more fully in another place. I look forward to the conclusions of my hon. Friend.

    Although the Lord Chancellor has been firm and clear and has urged caution in the granting of bail in rape and murder cases, all trials must be speeded up because there are too many murders and rapes. I ask my hon. Friend to update the statistics so that we may know how many people have been convicted of crimes of rape and murder whilst on bail.

    I beg to ask leave to withdraw the motion.

    Question put and negatived.