Your Thoughts: The 28 Day Bail Enforcement

Last week the UK saw the enforcement of a 28-day limit on police bail. This comes after criticism of scenarios where people have been kept on police bail for months, and in cases even years, without charge during investigations, essentially in a legal limbo. There is still the flexibility of an extension up to three months in complex cases, but before this change, police bail periods had no limit.

Given the sensitivity of these bail scenarios, authorities and the majority of the public back the change, and are leaning on the effective adaptation of police forces, but some are also not as keen, claiming the new rule could put victims at risk because suspects may be released without conditions.

Today we hear Your Thoughts and below list some comments from reputable sources in the legal sector who give their two cents on the matter.

Mark P. Thomas, Senior Lecturer, Nottingham Law School:

The Policing and Crime Act 2017, which amends the Police and Criminal Evidence Act 1984, paves the way for a potentially dangerous and turbulent course of events.

The “overriding objective” in the Criminal Procedure Rules 2015 requires cases to be dealt with “justly”. “Justly” means convicting the guilty and acquitting the innocent and dealing with cases efficiently and expeditiously. The introduction of a 28-day cap does not reflect this fundamental principle of criminal justice.

The former law would allow the police to hold a suspect on bail for an indefinite period of time during which time they could investigate and assess the cogency of evidence before then making a decision as to charge. This approach has, admittedly, involved the use of pre-charge bail over an elongated period of time. However, the introduction of a 28-day cap is not the answer.

Its effects are likely to be two-fold:

• Premature police charging: At present, the appropriate officer must satisfy himself, upon considering charge, that there is a realistic prospect of conviction and that it is in the public interest to charge the suspect with an offence, known as the “Full Code Test”. As a result of the new law, police charging is likely to soar in fear that a full and proper investigation is unlikely to be complete within 28 days. This is especially so in the more complex and sensitive investigations the police deal with.
• Backlogging the system: Should more individuals be charged prematurely, this will cause a serious delay in the trial process for individuals who will have to wait for longer periods of time before their case may be heard. Further, if a charge were to be eventually dropped, on account of a lack of evidence, time, money and resources will have been wasted and the alleged suspect will have gone through this process unnecessarily.

In the alternative, the appropriate officer may consider that charging is not possible on the evidence provided. This in turn will allow potentially guilty suspects to run free and potentially cause injustice for the alleged victim of the offence. On a large scale, the police force may no longer feel comfortable to charge suspects within such a tight turnaround, thus deferring their charging powers to the already overworked Crown Prosecution Service (CPS).

It is supposed that the silver lining in this issue is the ability to grant extensions on the use of police bail. Bail may be extended for up to three months by a senior police officer at superintendent level or above or the police can apply to the magistrates’ court for further extensions in the relevant period of time.

Although the 28-day cap will end the “injustice” to persons held on bail for long periods of time, the cap will also increase the potential injustice of persons charged prematurely with criminal offences which are either dealt with at a much later date than they presently would be, or would be dropped after time where no case is possible.

In effect the 28-day cap has the result of swapping one injustice for another.

Nick Barnard, Associate, Corker Binning:

Since its introduction in its present form by the Police and Criminal Evidence Act 1984, pre-charge bail has been a valuable tool for investigators during the preliminary stages of a criminal enquiry. It allows suspects under arrest to be released from custody whilst obliging them to return in future for further interview or charge. In the interim, they may be subject to conditions restricting their movements and behaviour, such as surrendering their passport or regularly reporting to a police station.

Whilst the benefits for the investigator are obvious, limited judicial oversight and lack of statutory time limits meant that police bail could be used to disproportionately restrict the rights of suspects for an indefinite period. However, following its Royal Assent earlier this year, sections of the Police and Criminal Evidence Act 2017 concerning pre-charge bail are now in force which significantly curtails its use.

As of Monday 3rd April 2017, there is a presumption that all suspects who are under arrest will be released without bail unless it is ‘necessary and proportionate’ – previously there was no requirement for proportionality. Furthermore, in most cases a suspect may only be kept on bail for 28 days without the approval of a superintendent (or senior) and up to three months before being approved by a magistrates’ court. Even where the court does grant approval, the application must be revived every three or six months, depending on the complexity of the case.

On paper, this is progress. However, in practice it will be of no benefit if not accompanied by a change in attitudes and a considerable boost to resources. After all, if pre-charge bail had previously only been utilised where necessary and proportionate, and investigations dealt with in a timely and expeditious fashion, there would have been no need for reform.

If the reforms are to succeed, the police must regard the new procedures as achievable targets and necessary safeguards, which protect the rights of those who have yet to be charged with any offence.

It also means we must also support the inevitable call for the more onerous requirements to be matched by a sufficient increase in resourcing, both for the investigating agencies and the ancillary services (e.g. forensic experts) upon which their work depends.

It would be the worst of all worlds if the new pre-charge bail regime became another cause of, or an excuse for, further delay in criminal investigation.

We would also love to hear more of Your Thoughts on this, so feel free to comment below and tell us what you think!