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Proposed changes to pre-charge bail: the good and the bad

The Policing and Crime Bill is working its way through Parliament into law. It follows the lengthy consultation and proposals for legislation released by the Home Office in March 2015.

There has, for many years, been increasing concern as to the length of time suspects have remained on bail while police investigate allegations against them. Often suspects have returned to answer bail time and time again, only for the police to indicate they have not completed their investigations. The police then ‘re-bail’ suspects to return on dates often months away. This has been particularly true in paper-heavy cases like fraud, sexual matters involving multiple witnesses, and cases involving forensic evidence where samples needs to be analysed or phones interrogated. There is no procedure under which the police could be held to account for such delay. Investigating officers can not be forced to give information. There is no procedure under which checks could be made and there is no legal aid for lawyers to put pressure on the police or consider their progress. Only the conditions imposed on bail could be challenged – not the bail itself or the reasonableness of its length.

The Policing and Crime Bill seeks to deal with these concerns by apparently introducing a framework for increased accountability and scrutiny of the pre-charge bail process. There will be a presumption that suspects released prior to charge will not need to be bailed. Suspects released in this way will not be given a date by which they must return or risk criminal sanction. Nor can they be made subject to bail conditions, breach of which can lead to arrest and detention.

For those for whom bail is needed, their pre-charge period on bail will be limited initially to 28 days (although there is an exceptional class that can initially be bailed for 3 months). For those subject to the 28 day rule, their bail can be extended for up to 3 months by a senior officer and thereafter can only be extended following an application to the magistrates’ court. The period on bail should only be extended if further time is needed to gather evidence if the investigation is proceeding diligently and expeditiously, and if bail (and any conditions attached) continues to be necessary and proportionate.

On the face of it, the Bill is a tremendous step forward. No longer will defence solicitors have to admit their impotence in the face of extended delay. No longer will police be able to re-bail for months offering little or no information as to when they expect to resolve the investigation. Suspects will have a clearer idea of how long they can expect to be on bail and subject to any conditions. There will be a means by which suspects can challenge what appears to be tardiness on the part of the police. The Impact Assessment talks of the costs to the Legal Aid Agency of the new procedure, so we hope that low-income suspects will be able to make use of the procedure and exercise their rights under it.

However, it is important to introduce a note of caution. It is not clear how much information will need to be given by police as to the progress of the investigation so that suspects can usefully challenge their bail. Certainly it seems clear the police will be allowed to withhold information deemed ‘sensitive’.

Also, the consultation paper suggests that the bail ‘clock’ should stop when the matter is referred to the CPS for a charging decision. What defence practitioner, weary of hearing “it’s with the CPS” as the justification for a re-bail and subsequent re-bails, will not be slightly alarmed by this?

Most worrying must be whether those not admitted to bail, but still under investigation, will end up suffering more under this new system. Isn’t it likely that those suspects who the police do not fear fleeing – the elderly, the young, those without previous conviction – will simply be told that the police will “be in contact” if and when they need to be? These people will have faced arrest and interview with no date (however illusory that date may have been) as to when they can expect matters to be resolved. Theirs will be an unenviable position. They will be under investigation with no end in sight and no means by which they can challenge the ‘whiff of suspect’ hanging round them.