The Lord Chancellor launched a low-key consultation exercise in June after two controversial killings, one by a defendant awaiting trial for killing his wife.
Garry Weddell, a police officer, had been granted bail in July 2007. Six months later, he killed his mother-in-law before taking his own life.
The other case concerned Richard Whelan, a passenger on the top deck of a London bus who was fatally stabbed after remonstrating with his killer for throwing chips at passengers.
After two inconclusive trials, Anthony Leon Peart pleaded guilty to the manslaughter on grounds of diminished responsibility. There was extensive public concern because Peart had been released from prison on that day of the killing — despite a warrant out for his arrest.
Some people were surprised to discover that the presumption in favour of bail applies in murder cases as well as others. Shortly afterwards, though, Mr Straw spoke up for the judges.
“The decision as to whether to grant bail to a defendant is always a difficult one for judges and magistrates,” he said. “These must be independent judicial decisions based on the law as it is, and they do so to a very high standard.”
The Lord Chancellor maintained this measured tone in the introduction to his consultation paper in June.
“It is vital to ensure that the courts strike the right balance between respecting individuals’ right to liberty and protecting the public,” he said. “I do not take it for granted that it will be necessary to amend legislation, but we shall not hesitate to bring forward whatever change in guidance, rules or the law may be needed.”
And are changes needed? No, say the criminal appeal judges in a response just made public. “Some crimes cannot be predicted, and, in consequence, they will not be prevented by implementing reforms to the legislative regime which governs bail.” In their view, “it would be unhelpful to make cosmetic changes to the current provisions” given that judges already apply “a rigorous approach to the exercise of their discretion as defined by statute”.
And that view is shared by district judges who sit in magistrates’ courts — or “stipendiaries” as they used to be called.
“There is, in essence, nothing wrong with the present state of the law,” they say. “There is nothing to suggest that a difference in the law would have affected the decisions reached in the cases of Peart and Weddell; neither can courts protect against future actions which on the facts before them simply cannot be anticipated.”
But this is where the law of unintended consequences comes in. The district judges draw attention to a damning report on the Peart case published in April by the four inspectorates that review the Crown Prosecution Service, the police, court administration and the prisons.
“There is no single or specific act or omission in the course of events which can properly be said to constitute a predictable link leading to the chain of events leading to the defendant killing Richard Whelan while there was an outstanding warrant for his arrest,” the inspectors reported. “However, what we have found is what may best be described as a lackadaisical or nonchalant approach within the criminal justice system to many routine aspects of the handling of cases, the cumulative effect of which was to lead to the [killing].
The inspectors’ warning should be heeded, say the district judges.
“It is clear to those of us who sit daily in the magistrates’ courts from our meetings with relatively senior CPS and court legal staff that they are not even aware of the review’s conclusions and recommendations. In our experience, there continues daily in magistrates’ courts to be a lack of diligence in verifying suggested bail conditions and scant evidence of prompt and thereafter effective enforcement of those conditions.”
The district judges referred to cases where a defendant appeared in court, only for it to become apparent that he had broken some of his conditions while on bail.
“Appropriate action is not always taken — namely the immediate arrest of the defendant pursuant to section 7 of the Bail Act 1976 — be it because of a lack of police resources or a lack of knowledge on the part of prosecutors and legal advisers as to the correct procedure to be adopted.”
Crown Prosecution Service lawyers routinely provide the court with a list of previous convictions that does not include up-to-date details of the last period in custody nor impending prosecutions for which the defendant may already be on bail, the district judges complain.
“The police often bail offenders who are already subject to and have offended on bail; indeed it is not uncommon to witness in court the non-attendance of defendants bailed by the police for offences which include failure to surrender to bail.
“A failure by the police to understand the provisions of the Bail Act 1976 and their application is evident in some areas, as is their refusal to accept assistance offered both by court and CPS staff to engage in joint training for those responsible for making/advising on decisions as to bail.”
The district judges’ response is endorsed by the campaign group Justice, which quotes a further extract from the inspectorate report.
“The most striking feature of our findings,” said the inspectors, “does not relate to the systems and processes which were then in operation (some of which could be stronger), but to the attitudes and cultures of the criminal justice system to the handling of cases involving the commission of further offences while the defendant is on bail and the degree of tolerance towards non-compliance with bail conditions.”
The message to Mr Straw is clear — indeed it has been since the inspectorate report was published in April. We don’t need a high-profile change in the law on bail. What we do need is steady, unglamorous training to ensure that the existing law is properly applied.
But that would cost money, as well as bumping up the prison population. Something of a dilemma for the Government? Its response to this consultation paper should make interesting reading.
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