Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Tuesday 7th February 2012 Lords Chamber

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.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, intimidation of witnesses is itself an offence, so one has to put these things into perspective.

The noble Lord mentioned a Keeling schedule. I note the point that he has made and shall take advice on it.

I am slightly amazed that either Justice or the noble Lord has cavilled at this proposal. It is said that decisions regarding remand and about sentences are completely separate. So they are, as the law stands; the question asked by this government proposal is whether they ought to be.

The Government consider that, in general, defendants should not be remanded in custody where it is apparent to the court that there is no real prospect of their being imprisoned if convicted. Let me be clear: this is not any Alice in Wonderland idea of sentence first, verdict afterwards. The court will not engage in a sentencing exercise in advance of the trial. The provision affects only cases where it is clear at the outset that the alleged crime is not serious enough to warrant a custodial sentence. Where that is the case, remanding the defendant in custody is generally disproportionate and not a sensible use of prison space. That sort of defendant will not pose a serious threat to public safety. Those defendants who pose such a threat will not pass the “no real prospect” test and so will still be liable to be remanded in custody.

Some respondents to the Green Paper argued that special considerations might apply where offences are committed in a domestic setting, in that an offence that does not require custody might nevertheless imply a risk of domestic violence if the defendant were bailed—the noble Lord raised that issue. We recognise the force of that argument, and have taken account of it. The provision incorporates a special exception to deal with that sort of situation. However, remand places are too expensive to waste on defendants who do not need them. We want to ensure that they are used only where it is necessary to protect the public.

I take note of what the noble Lord has said. I will consider and reflect on it but we believe that this is one simple way of stopping the use of scarce prison accommodation for people who, once they are tried and sentenced, are not going to be sent to prison. Clause 83 and Schedule 11 should stand part of the Bill.

[Lord Ponsonby of Shulbrede]

What would the noble Lord say to the case of failure to surrender? It is very common in magistrates’ courts to get people who repeatedly commit low-level offences and have no regard for court orders. They just do not turn up to court. Is the noble Lord really saying that there should be no threat of keeping them in custody until their trial?

[Lord McNally]

They can be tried in their absence and of course they can be picked up and put into custody. We are trying to deal with a very large number of people who go through our court system, are held in custody—taking up valuable prison space—but who from the very beginning it is clear will not receive any kind of prison sentence. If people do not turn up, of course they are in danger of being either tried in their absence or picked up and held in custody. If people try to intimidate witnesses, they commit a further crime for which they will undoubtedly end up in custody. In many ways, both Justice and the noble Lord are straining at gnats here. We are trying to deal with the very bottom end of cases. I will reflect on what he said, particularly on the Keeling schedule, and come back on Report.

Clause 83 agreed.