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Remands In Custody For More Than Eight Days

Volume 113: debated on Tuesday 31 March 1987

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'.—(1) The following section shall be inserted after section 128 of the Magistrates' Courts Act 1980—

"Remands in custody for more than eight days.

128A.—(1) The Secretary of State may by order made by statutory instrument provide that this section shall have effect—

  • (a) in an area specified in the order; or
  • (b) in proceedings of a description so specified, in relation to any accused person ("the accused") who has attained the age of 17.
  • (2) A magistrates' court may remand the accused in custody for a period exceeding 8 clear days if—

  • (a) it has previously remanded him in custody for the same offence; and
  • (b) he is before the court;
  • but only if, after affording the parties an opportunity to make representations, it has formed a view as to the minimum period likely to elapse before the next stage in the proceedings other than a hearing relating to a further remand in custody or on bail and only for a period not exceeding—

  • (i) that period; or
  • (ii) 28 clear days,
  • whichever is the less.

    (3) Nothing in this section affects the right of the accused to apply for bail during the period of the remand.

    (4) After paragraph 9 of Schedule 1 to the Bail Act 1976 there shall be inserted—

    "Cases under section 128A of Magistrates' Courts Act 1980

    10. Where the court is considering excercising the power conferred by section 128A of the Magistrates' Courts Act 1980 (power to remand in custody for more than 8 clear days), it shall have regard to the total length of time which the accused would spend in custody if it were to exercise the power".

    (5) A statutory instrument containing an order under this section shall not be made unless a draft of the instrument has been laid before Parliament and been approved by a resolution of each House.".'.— [Mr. Mellor.]

    Brought up, and read the First time.

    I beg to move, That the clause be oread a Second time.

    With this, it will be convenient to discuss Government amendment No. 107.

    New clause 25 deals with matters that we said in Committee we would bring forward on Report. The new clause deals with remands in custody, a matter that is of considerable significance to the criminal justice system.

    We shall have the opportunity to consider later the present arrangements for the granting or refusal of bail. The new clause deals with a different but important aspect: the basis on which a court should remand a defendant in custody.

    At present, a person may not be on remand and in custody for more than eight days. A consultative document that was issued a few months ago by the Home Office made it clear that a number of magistrates courts hearings are purely formal and that a defendant may have to be brought a very considerable distance from prison to appear in court. Prison officers are required to escort the prisoner, often to the detriment of the prison regime. Court time is taken up by remands, during which nothing of substance can be achieved, thereby causing delay to the hearing of other cases, in which substantial progress might be made.

    Consultations were therefore held on the proposal that courts should be permitted to remand for up to 28 days. We suggested that that would be a legitimate extension of the arrangements that were introduced under the 1982 Act, whereby defendants who are remanded in custody can agree that they do not wish to appear in court. Research shows that between a third and a half of those who are eligible to say that they do not wish to appear have chosen not to do so. A number of the organisations that dissented from this proposition said that the only consequence would be an extension of the period in custody that would be imposed on a number of remand prisoners.

    This decision has to be taken against the background of the remand population having grown substantially in recent years—from about 4,000 in 1979 to about 8,500 today. Therefore, the new clause represents a modest step forward. We believe that it would provide an opportunity to find out, from practical experience, which of the various contending opinions that have been advanced in response to our document is correct.

    The proposal is that the first remand should be for a period of eight days, but thereafter the court should be able to remand for up to 28 days in the event that it was determined that substantive progress with the case would not be possible until the expiry of a period greater than eight days. The new clause is subject to a number of safeguards. For instance, the accused will be allowed to apply for bail during the period of remand if it is suggested that circumstances have changed. No one will be kept in custody for a substantial period who has grounds to mount a bail application.

    There is also a modification in the new clause to the Nottingham justices case which, as the House will recall, deals with the question when a bail application may properly be made and restricts a fresh bail application to occasions when there are fresh circumstances. That allows the court to have regard to how long an individual will spend in custody when deciding whether to consider bail once again. That is provided for in subsection (4) of new clause 25, which states:
    "Where the court is considering exercising the power conferred by section 128A of the Magistrates' Courts Act 1980 … it shall have regard to the total length of time which the accused would spend in custody if it were to exercise the power."

    Will the Minister ensure that he is not misunderstood? Is he saying that a fresh bail application can be made when the only thing that has changed is the length of time spent by the accused in custody?

    It means that the fresh application can be made if the period spent in custody is longer than was envisaged at the outset. It would mean, I would have thought, for the most part, that a fresh application could be made at each stage of an extended period of remand in custody. To that extent, it loosens the rules. Of course, the question of the proper construction will be a matter for the courts.

    The background against which we have taken the decisions lies in research carried out last year, which showed that, of an average of eight hearings that took place in the magistrates court prior to committal for trial in the cases sampled, five of the hearings were purely formal occasions and nothing of substance occurred. It is scarcely surprising when dealing with a number of major cases that it is not possible to progress speedily to committal.

    The argument that has been put forward in favour of making the change rests on the clear basis that all those who play their part within the system will get on with the job—that the prosecution will always state the earliest time when it can be ready and that the court will look critically at applications for remands and will not allow remands for extended periods to take place without good reason. It would be devastating to the system if the ability of the courts to remand for periods of up to 28 days were to become a general habit to remand for 28 days. That objection has been raised by many organisations.

    In tabling the new clause, the Government are well aware of those objections and accept their force, not as something that is bound to happen, but as something that is sufficiently likely to happen that we should not proceed with an across-the-board reform without taking the opportunity to see whether in practice things work out in the way that we would wish or whether the scepticism that has been expressed about the manner in which the courts would discharge the functions can be justified.

    I hope that the new clause is not controversial. The proposal sets a period within which an experiment will take place. This has happened before with regard to tape recording and time limits and is a well-trodden path. We should be able to designate a number of areas in due course and a number of offences which would be the subject of an experiment to allow remands of this kind to take place. We have in mind a number of different areas of the country drawn to reflect different court conditions and the offences would, of course, be those that were likely to be committed for trial. There would then be an experimental period and, as subsection (5) makes clear, we can only bring the proposal into force if there is an affirmative resolution of both Houses of Parliament. The matter will be fully considered by Parliament and if matters proceeded in a way that seemed to clear some unnecessary hearings from the court without unduly prolonging remands in custody, I feel sure the House would wish to see the proposal introduced more widely.

    However, if we were to find that unnecessarily long adjournments and remands in custody were being granted without good justification, we would be able to leave the position as it is at present without any damage being done to the system. I hope that the new clause will establish that we have listened to those people whom we consulted and that we have recognised that it is in the interest of justice for the courts to be freed from unnecessary hearings. It is also in the interests of justice that people should not be locked up in prison on remand for longer than absolutely necessary. The experiment gives us a chance to find out which of those contending priorities should in the end be favoured by the full-scale change that could lie at the end of the experimental period.

    I do not want to delay the House for very long because we debated the matter fully in Committee. However, the Minister will be aware that we have some reservations and he already referred to one of our main reservations, the possibility that there may be an extended remand period. For that reason, we welcome the fact that the Government are introducing this provision as an experiment to see how it works.

    We expressed concern in Committee—and I restate our concern now—that some people might not be well enough represented or, in some cases may be unrepresented, and therefore have difficulty in bringing to the attention of the court the fact that their circumstances have changed. Theoretically, there should be no difficulty. Theoretically, all they need do is to inform their solicitor or inform the clerk of the court through the prison authorities. However, in a number of cases, especially those involving less articulate and less well represented defendants, there may be periods when we remand in custody people who, had the changed circumstances been put before the court, could have been released on bail. I urge the Minister, when he carries out the experiment, to ensure that that aspect is checked carefully.

    We need to understand that the reason why the proposal is being introduced is not that we believe that it is right in justice—none of us would argue that—but that we are taking this action because of the pressure on the courts and the prison system. At the end of the day, that is not the best of reasons for legislating in this way.

    We should all be grateful to the Minister for avoiding being too dogmatic about this matter. The pilot experiment, or experiments, will be welcome. Will the Minister assure the House that the monitoring of the experiment will be carried out carefully and independently? I urge him to consider that the magistrates courts that are asked to deal with the hearings should not be the bodies to undertake the research. If they were, I fear that the research would be somewhat subjective. I should be grateful if the Minister would tell the House what arrangements he has in mind for the research that will be necessary to discover whether the experiment works. I ask the Minister to consider whether the pilot projects might not be carried out in the same areas, and at the same time, as pilot projects, to limit the delay between arrest, committal and trial.

    As the Minister knows, in Committee I expressed the view that there were other hearings in the magistrates courts with which we could dispense, particularly the formal committal proceedings which take place in most cases, although not in every case. I ask the Minister to consider not only my view but the strongly expressed private view of the Under-Secretary of State for the Home Department— the hon. Member for Grantham (Mr. Hogg)—who, I think, agreed with me in Committee, speaking not as a Minister but as an individual Member. Will the Minister consider, if these experiments are successful, a possible pilot project to deal with committal proceedings in a similar way?

    4.30 pm

    I am grateful to hon. Members for the manner in which they have received the new clause. The hon. Member for Hammersmith (Mr. Soley) was right to say that this decision is being taken for severely practical reasons. One cannot run a system as complicated as the criminal justice system without having severely practical considerations always in the forefront of our minds. There is nothing magic about eight days. It just happens to be the figure that was determined by previous legislation. We are anxious to be businesslike and to strike a fair balance. I am grateful to the hon. Gentleman and to the hon. and learned Member for Montgomery (Mr. Carlile) for recognising that we have here an opportunity, as they say, to suck it and see. I hope that we can explore the results in a way that will enable all of us to reach the appropriate conclusions.

    That leads me to what the hon. and learned Member for Montgomery said about the manner in which this experiment will be monitored. We have not reached any settled conclusions on that. If the hon. and learned Gentleman would like to write in a little more detail about what he has in mind, we would be delighted to hear from him. Obviously, we want the research process to take proper account of the views of those who will have an influence over the final shape of these matters.

    The hon. and learned Member for Montgomery referred to formal committals, or the section 1 committals, as they were known in my prehistoric days of practising at the Bar. Inevitably, a spotlight is shone on the committal arrangements. We have reached no concluded view on the future of committal proceedings, but the hon. and learned Gentleman well knows that these are matters that fall to be examined. I dare say that, in due course, a Minister will come to the Dispatch Box to talk more about that. It is certainly not an item on our present agenda.

    I should like to clarify a point where I might not have been at my most clear. It concerns the impact of proposed subsection (4), which amends section 128A of the Magistrates' Courts Act 1980 and what it means. We are saying in that proposed subsection that the decision to remand must take account of the time in custody. It does not of itself make the lapse of time a new factor for bail applications, but, read in conjunction with the Nottingham justices case, it will make a material difference. That case suggests that a lapse of time might in some cases count as one already. Each court's decision on what difference that makes will determine whether it will hear an application. In fairness, it places squarely before the court a major issue that must be in its mind— the length of time that a person will remain in custody as a consequence of a particular decision. I hope that that makes the position clearer.

    Question put and agreed to.

    Clause read a Second time, and added to the Bill.