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Limitation Of Power To Grant Bail In Case Of Scheuled Offences

Volume 114: debated on Wednesday 8 April 1987

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I beg to move amendment No. 1, in page 1, line 11, after (1)', insert

`Subject to subsection (6) below,'.

With this it will be convenient to take the following: Government amendment No. 4.

Amendment No. 5, in page 2, line 33, at end insert

  • (c) who was a serving member of any of Her Majesty's forces, or a serving member of the Royal Ulster Constabulary or of the Royal Ulster Constabulary Reserve, and on duty, at the time of the commission of the alleged offence.'.
  • Government amendment No. 6.

    In Committee some concerns were expressed about the position of serving members of the security forces under section 2. In giving effect to Sir George Baker's recommendation that members of the Royal Ulster Constabulary and the RUC Reserve should be put on the same footing as serving members of Her Majesty's forces, the Government's intention — as I told the Committee—was that a magistrate should be able to bail serving members of the security forces into military or police custody as appropriate. The option of bail into military or police custody would be available only where the scheduled offence was alleged to have been committed in connection with the duties of the soldier or policeman.

    Some hon. Members — notably the right hon. and learned Member for Warley West (Mr. Archer), the right hon. Member for South Down (Mr. Powell) and the hon. Member for Birmingham, Ladywood (Ms. Short) -pointed out that the clause as drafted goes further than this: it would except, in its present form, serving members of the security forces altogether from the scope of section 2. This has, of course, been the position in regard to serving soldiers since the bail restrictions were first introduced in 1973, and I am not aware that this has caused any difficulties in practice. However, the Government accept that the clause needs tightening up. These amendments therefore provide that a magistrate may grant bail to a serving member of the security forces only if he is satisfied that the person concerned can be held in military or police custody, and the magistrate must impose a condition that he is to be held in such custody. If military custody were not available, or the policeman or soldier wanted to apply to be released from all custody on bail, he would be subject to the same restrictions concerning bail as any other person charged with a scheduled offence.

    I welcome Government amendment No. 1 without reservation. However, the Minister will recall that in Committee we were concerned about the clear distinction between the treatment of a member of the security forces or a soldier who was on duty, and one who was not. I think that I prefer the wording in amendment No. 5 to the wording in Government amendment No. 6, but I shall not pursue that. I shall not move amendment No. 5, and I accept the other amendments.

    At an earlier stage in our proceedings the Minister seemed somewhat aggrieved that his efforts to meet points made in Committee were not receiving the recognition that they deserved. I hope that we shall now be able to glut the Minister with good things. I recognise that Government amendment No. 6 fully spells out, as it should be spelt out on the face of a statute, the intentions as they were explained by the Minister to the Committee on that occasion.

    Amendment agreed to.

    I beg to move amendment No. 2, in page 2, line 1, leave out 'may, in his discretion,' and insert `shall'.

    With this it will be convenient to take the following: Government amendment No. 2A.

    Amendment No. 3, in page 2, line 13, at end insert—

    `(3) In exercising his discretion the judge shall have regard to all the circumstances of the case including:
  • (a) the nature and seriousness of the offence charged;
  • (b) the character, antecedents, associations and community ties of the defendant;
  • (c) the nature of the evidence;
  • (d) the time spent or likely to be spent in custody if bail is refused.'.
  • In Committee we explored with some thoroughness clause 1 and debated it at some length again earlier this evening. It is the clause relating to bail. Widespread concern was expressed today, as it was in Committee, that people who had not been convicted of any offence might be detained in custody, awaiting trial, for what could be the equivalent of a substantial custodial sentence.

    I do not propose to detail all the matters that were explored in Committee and in the earlier debate, but two things in particular exercised some of us. In paragraph 81 Sir George Baker recommended that the judge, in considering whether to grant bail, should be declared to have a wide discretion and should be given guidelines about the matters that he may take into account. That was the purpose of our amendment No. 3. It is reflected, and perhaps more brilliantly reflected, in Government amendment No. 2A. We are grateful to the Government for responding to what we said and I do not seek to take that matter any further.

    9.15 pm

    The other matter that concerned us was the imbalance between the granting and the refusing of bail. Clause 1 provides that if certain matters are established the court must refuse bail, but that if they are not established it may grant bail. That seemed strange to us, because we had assumed that matters that the Government regarded as obstacles to bail would be listed in the clause. If none of them is established, it is not easy to understand why bail should not be granted.

    If it is said that the judge should have a residual discretion, it is not clear why he should not have a discretion both ways. We were prepared to consider resolving the asymmetry by providing that in either event the judge should have a discretion. However, we discovered that there was a procedural problem about the amendment, because it would make nonsense of the clause. It would have said that the clause provided that the judge should have a discretion whether or not any of the listed objections were established. We moved the amendment to remove the discretion in either case so that the House could have an opportunity to discuss the matter.

    Having explained that, I would respond sympathetically if the Government were to say that they will redraft the Bill to resolve the asymmetry by providing that there should be a discretion both ways, rather than only one way. I do not propose to repeat all the arguments that were ventilated in Committee. I think that I have explained the purpose of the amendment.

    On reflection, the right hon. and learned Member for Warley, West (Mr. Archer) feels that Government amendment No 2A fulfils the undertaking that I gave in Committee and is an important step forward. What we have sought to do is to introduce into the clause a list of the considerations to which the judge, in exercising his discretion about bail, can direct his attention. I shall come to the point of the Opposition amendment in a moment.

    I should make it clear that this list is not intended to be exhaustive, but I got the feeling in Committee that hon. Members would welcome matters being spelt out at somewhat greater length. Of course, the judge can take into account other factors that are not included in the Government amendment, so we are not limiting or indeed extending the judge's existing total discretion in these matters. Having reflected on this matter, the Government came to the conclusion that it would be wrong to make the grant of bail mandatory if none of the conditions in the new section 2(2) applies. The point here is that we feel that our emergency legislation should interfere as little as possible with the operations of the ordinary law in Northern Ireland.

    I am afraid that there is a pressing security-related need for special restrictions to apply to the grant of bail in scheduled cases in Northern Ireland. Where those restrictions do not apply, the ordinary law of bail, which in Northern Ireland is common law, should continue to operate. It is that common law that gives the judge unfettered discretion. If he had to grant bail where none of the stated conditions applied it would, in theory, be because the judge has been forced to grant bail to a person accused of a scheduled offence in circumstances where a magistrate might well have decided to refuse bail to someone accused of a non-scheduled offence.

    Therefore, the Government's view is that it is right not to use the emergency law to interfere with the operation of the ordinary law on the granting of bail in Northern Ireland. I hope that the House will agree that the incorporation of considerations on the lines proposed in the amendment is an honest attempt to meet the concern that was expressed on this point in Committee.

    That is what the Minister said in Committee. I do not find it any more persuasive now than I did when he said it in Committee, but I am conscious of the fact that the Government obviously addressed their mind to our arguments on this whole matter. They have responded admirably to one of our arguments and it would be churlish of me to proceed with the other one. I beg to ask leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Amendments made: No. 2A, in page 2, line 13, at end insert —

    '(2a) In exercising his descretion in accordance with subsection (2) above in relation to a person, a judge shall have regard to such of the following considerations as appear to him to be relevant, namely—
  • (a) the nature and seriousness of the offence with which the person is charged.
  • (b) the character, antecedents, associations and community ties of the person,
  • (c) the time which the person has already spent in custody and the time which he is likely to spend in custody if he is not admitted to bail, and
  • (d) the strength of the evidence of his having committed the offence,
  • as well as to any others which appear to be relevant.'.

    No. 4, in page 2, line 23, leave out from 'fourteen' to end of line 27.

    No. 6, in page 2, line 33, at end insert—

    '(6) Subsection (1) above shall not preclude a resident magistrate from admitting to bail a person to whom this section applies if—
  • (a) the person is a serving member of any of Her Majesty's forces or a serving member of the Royal Ulster Constabulary or of the Royal Ulster Constabulary Reserve, and
  • (b) the resident magistrate is satisfied that suitable arrangements have been made for the person to be held in military or (as the case may be) police custody, and imposes a condition on admitting him to bail that he is to be held in such custody.'.—[Mr. Scott.]
  • I beg to move amendment No. 9, in page 4, line 6, at end insert—

    '(3) Where in any such proceedings the prosecution proposes to give, or (as the case may be) has given, in evidence a statement made by the accused, and it appears to the court that, having regard to the circumstances in which the statement was obtained, its admission in evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, then the court shall do one of the things mentioned in subsection (2)(i) to (iii) above.'.

    With this it will be convenient to take amendment No. 24, in page 11, line 27, at end insert—

    '(12) Where a court finds that the powers conferred by subsections (7) and (10) above have been exercised unreasonably, any statement by the accused obtained in the absence of a solicitor shall be deemed inadmissible in evidence.'.

    I asked my hon. Friend the Member for Walsall, North (Mr. Winnick) whether he would speak to these amendments. He kindly said that he would, but we then discovered a procedural difficulty because the amendments were not tabled in his name. May I deal with that, Mr. Deputy Speaker, by moving the amendments formally and leaving my hon. Friend to ventilate the arguments about them?

    No one underestimates the difficulties that one faces when dealing with matters of justice in Northern Ireland. Much of what we have debated this evening arises from the situation in the Province. Undoubtedly the terrorist campaign is a factor that affects those who are charged with various offences. However, that makes it all the more important that justice is seen to he done in Northern Ireland. Surely it is only in the interests of the terrorists, from whichever side of the sectarian divide they may come, to be able effectively to question the way in which the courts and justice in general operate there. If the terrorists discern doubts in the minds of those who are not in their ranks, that is clearly a victory for them.

    The purpose of the amendments is to eliminate the possibility of unfair convictions as a result of improperly obtained confessions. Our argument is based to a large extent on section 76 of the Police and Criminal Evidence Act 1984. In Committee, the Solicitor-General referred to the circumstances of Northern Ireland when dealing with this aspect of the 1984 Act. He said:
    "it should be open to a court to admit a confession statement notwithstanding that there is a taint, a hint, the merest vestige of unfairness to the accused or a hint, a taint, the merest vestige of a fact that it would be otherwise adverse to the interests of justice."—[Official Report, Standing Committee D, 29 January 1987; c. 93.]
    We can hardly be happy with that interpretation of such an important matter. As my right hon. and learned Friend the Member for Warley, West (Mr. Archer) said in Committee, the Solicitor-General was making a startling proposition. I am not a lawyer, but I certainly believe in the rule of law. The view that was expressed by the Solicitor-General did not strike much confidence in me. I do not know what it would lead to for people in Northern Ireland. What the Solicitor-General's remarks come down to is this: "Well, it does not really matter at the end of the day, in view of the circumstances in the Province, if there is a wee bit of unfairness towards the accused, or of it is adverse to the interests of justice in some other way. Let it pass." We strongly disagree with that point of view.

    Hon. Members on both sides of the House have referred on numerous occasions to the importance of the rule of law. Even faced with a sustained terrorist campaign, the rule of law should apply in Northern Ireland. That is why we believe that the amendments are necessary.

    I return to the main point of the amendment—that
    "having regard to the circumstances in which the statement was obtained its admission in evidence would have such an adverse effect on the fairness of the proceedings"
    that we believe that the court should not admit it. If it is clear that the accused's statement was obtained by means that would not be allowed in court on the mainland. it should not be allowed by a court in Northern Ireland. Amendment No. 24, which calls for the presence of a solicitor when a prisoner is questioned by the police, is self-explanatory.

    These amendments are necessary. Terrorists should not be able to argue that they cannot rely on the courts and justice in the Province. It should not be thought in the Irish Republic or in any other country that circumstances in Northern Ireland are such that we have abandoned the rule of law. If certain provisions as laid down in the 1984 Act should apply in the United Kingdom, they should apply to the whole of the United Kingdom. The Solicitor- General placed great emphasis on the word "may". It is up to the courts to decide. We know how courts, in the main, decide in Britain. The position should be the same in Northern Ireland.

    For those reasons, I believe that the amendments should be supported.

    I find it difficult to disagree with many of the comments of the hon. Member for Walsall, North (Mr. Winnick), which makes it all the sadder that I have to advise the House to reject both amendments.

    Amendment No. 9 would remove from judges in Northern Ireland the discretion which Sir George Baker found that they were in practice exercising fairly to exclude confession evidence in the interests of fairness. It would make the exclusion or disregarding of evidence or the ordering of a new trial mandatory, not discretionary, where the courts find that it would be unfair to admit it. This is not a matter in which a mandatory provision such as this would be appropriate, because it must be for the courts, in considering the whole position, to decide whether the circumstances are such that they should take one of the specified courses. I do not think that the amendment would help the courts in deciding when the circumstances were such that they should require exclusion.

    Broadly, the Government are satisfied that Sir George Baker was correct in concluding that the exercise of this discretion by the judge operates well. We do not seek to change the practice of the courts. It is therefore right that new section 8(3) should be declaratory, as Sir George Baker recommended. We agree with him that the courts have interpreted section 8 fairly and sensibly in a way that fully protects the rights of defendants in Northern Ireland. Clause 4, as drafted, seeks to put that practice on a statutory basis. The amendments would go further than that and, in doing so, disturb the careful balance that has to be struck between the rights of the accused and the rights of society as a whole to expect authorities to deal effectively with terrorism by bringing terrorists to justice before the courts.

    Amendment No. 24 would require a court to exclude a statement made by a person in police custody if the police had unreasonably exercised their power under clause 13(7)—the power to delay access to a solicitor or to direct that consultation take place in the presence of a police officer. It is better that this matter should not be left to the discretion of the judge. He has the discretion, to which the hon. Member for Walsall, North referred, to exclude any statement to avoid unfairness to the accused or otherwise in the interests of justice. Anyone who has studied the practice of the courts in Northern Ireland in recent years could not conclude other than that they have operated this fairly and in the interests of the accused.

    I must therefore ask the House not to change the present arrangements and to reject the two amendments.

    Trying to be objective, I am bound to say that, by any test of logic, my hon. Friend the Member for Walsall, North (Mr. Winnick) had the better of that exchange. This is not a matter on which we feel so strongly that it would be right to divide the House at this hour. Therefore, I beg to ask leave to withdraw the amendment.

    Amendment, by leave, withdrawn.