Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I shall be as quick as I can. Clause 83 is one of the shortest clauses in the Bill. It states: "““Schedule 11 (amendment of enactments relating to bail) has effect””." If we turn to Schedule 11 on page 193, we see that it sets out the proposals for amendments to the Bail Act 1976. If there was ever a need for a keeling schedule, it is here. Amendments to the 1976 Act are set out in various paragraphs of Schedule 11, and frankly, it is not good enough. There really ought to be a proper keeling schedule of the amendments being made to the 1976 Act, and I really would ask the Minister to arrange for one. My substantive point is this. Schedule 11 would subject bail in adult cases where a person has been accused or convicted of an imprisonable offence, or where a person has been released on bail but fails to surrender to custody, to a new test where bail could not be withheld if there was no real prospect that the person would receive a custodial sentence upon conviction unless he might, if released on bail, commit an offence involving domestic violence. It would also remove the court’s power, where an adult is accused or convicted of a non-imprisonable offence, to remand them in custody on the current available grounds: likelihood of failure to surrender to custody and/or previous arrest for breach of bail to commit offences or interfere with witnesses or obstruct the course of justice. It would create a new ground for withholding bail on the grounds that he might commit an offence involving domestic violence. There is a power to withhold bail, but the grounds are only that the accused might commit an offence involving domestic violence. Of course it is a good idea to prevent remands in custody where the system can, and we support that. But the concern is—and here I am grateful to the organisation Justice for what it has to say about this matter—that the new test leaves no residual discretion to the court to withhold bail even where there is strong evidence that a defendant will commit a violent offence, intimidate witnesses or otherwise interfere with the course of justice on bail. The exceptions in the Bill relating to domestic violence, while welcome, are confined to too narrow a class of case, providing no protection for other deserving grounds; for example, where there is a substantial risk of violent intimidation of a victim of crime not of the same household as the defendant—so not domestic violence. A further issue is the new ““no real prospect”” test, because it may in practice be difficult for a court at an early stage in criminal proceedings, or even up to the end of a trial/guilty plea, effectively to assess the likely sentence. Even more seriously, there may be a legitimate expectation aroused by the conclusion that there is no such real prospect at an early stage. The sentencing court, with full relevant information before it, may take a different view of the case and there should be no question of its being influenced or, particularly, bound by the court’s earlier view. While we understand the desire not to remand in custody people who should not be so remanded, we feel that the Government have not thought through sufficiently the great gaps in these proposals. For example, somebody who might intimidate a witness would have to be granted bail under these circumstances because imprisonment was not available as a possible punishment for the crime that they were alleged to have committed. There are too many holes in the provision which, I am afraid, will be breached, and it takes away the discretion of the court. The Bail Act 1976 has worked pretty well in practice. I do not say that it is perfect, but I wonder whether Clause 83 is not so full of holes that it will be abused by defendants.