Corporate Crime analysis: As the Policing and Crime Bill passes its first reading in the House of Commons, Laura Higgs, associate solicitor and Kate Goold, partner, at Bindmans LLP, analyse the impact which this extensive and far-reaching piece of legislation will have on pre-charge bail and police powers.

What are the key proposals in this area?

Part 4 of the Bill encapsulates the key proposals. The most striking aspect in relation to pre-charge bail is that there will be a presumption that while an investigation is ongoing the suspect should be released without bail unless certain pre-conditions are met. These pre-conditions are that it is necessary and proportionate in the circumstances for the suspect to be released on bail, and an officer of inspector or above authorises it. There is no statutory definition of what reasonable or proportionate means in this context.

If bail is authorised, a suspect may only be bailed for an initial period of 28 days (or three months in the case of an investigation by the Serious Fraud Office (SFO)) where a superintendent considers that the following criteria are met:

• there are reasonable grounds for believing that the person is guilty of the offence in question
• there are reasonable grounds for believing that further time is needed for the police to make a charging decision or that further investigation is needed
• there are reasonable grounds for believing that the charging decision or investigation are being conducted diligently and expeditiously
• that releasing the person on bail continues to be necessary or proportionate

In SFO cases, where that above criteria are met and the case has been designated as ‘exceptionally complex’ the period of time on bail can be extended to six months if authorised by an assistant chief constable or a commander in the case of the Metropolitan Police Force.

Any extensions to bail beyond the three-month (or six-month) period can only be granted by the magistrates’ court, introducing judicial oversight of pre-charge bail for the first time. Previously the magistrates’ court could only intervene when hearing an appeal brought by the suspect to pre-charge bail conditions imposed by the police.

The magistrates’ court, when considering an application for an extension, will assess whether there are reasonable grounds for believing that further time is needed for the police to make a charging decision or that further investigation is needed; and that the charging decision or investigation are being conducted diligently and expeditiously. Furthermore, they will have to be satisfied that releasing the person on bail continues to be necessary and proportionate.

The court can grant an initial extension of three months (or six months if three months would not be sufficient). There is no limit to the number of extensions which a court can grant. The court will make a decision regarding whether or not to extend bail on the papers unless the total period of time would be more than 12 months.

It is interesting to note that none of the time limits described above relate to a situation where a suspect is bailed under section 37(7) of the Police and Criminal Evidence Act 1984 (PACE 1984), solely so that the Crown Prosecution Service (CPS) may make a charging decision.

Aside from pre-charge bail the Bill also proposes some smaller, but arguably, significant changes to other police powers.

Clause 52 extends the police’s power of entry for the purpose of arrest under PACE 1984, s 17 so that the police are allowed to enter premises to arrest someone for a suspected breach of a pre- or post-charge bail condition.

Clause 53 amends PACE 1984 to extend to 17 year olds the provisions which currently apply to 14–16 year olds, for example, in relation to the taking of urine or non-intimate sample for testing for Class A drugs. This follows the Criminal Justice and Courts Act 2015 enshrining in law that those aged 17 should be treated as ‘arrested juveniles’ for the purposes of PACE 1984.

What is the rationale behind these proposed changes?

The proposed changes to pre-charge bail are designed to tackle the deficiencies and inefficiencies of the regime, as highlighted by high-profile historic sexual abuse allegations, such as that of radio DJ Paul Gambaccini. Mr Gambaccini, now a very vocal proponent of bail reform, was on bail for over a year before finally being informed that no further action would be taken. Very shortly after this decision was taken, Theresa May, the Home Secretary, announced a review of pre-charge bail and a Home Affairs Select Committee review followed, resulting in the changes proposed by this Bill.

By introducing a presumption that suspects will be released without bail unless it is considered necessary and proportionate to do so, and limiting the time which someone can be kept on bail, the authors of the Bill hope to end the current regime where thousands of suspects are kept on bail indefinitely with no accountability of transparency and often with extremely onerous conditions. For example, in July 2014 19,000 people in the Metropolitan area were on pre-charge bail, 4,630 of them for six months. For those on bail for longer than 28 days, 50% of these cases were concluded with no further action being taken. The select committee heard evidence that suspects were re-bailed on numerous occasions without justification and that no explanation or apology was given by the CPS at the end of a lengthy investigation where a suspect was released without charge.

What is the likely impact of the introduction of the proposals? Are they likely to achieve their objectives?

The key objective of the proposals put forward in light of the select committee investigation was to put an end to individuals spending months and sometimes years of uncertainty living on bail often with onerous conditions. However, the presumption of release without bail could actually lead to individuals having the shadow of a police investigation hanging over them for longer.

There will be no impetus for the police to act expeditiously in these cases, and those released without bail will have none of the safeguards suggested under the Bill to ensure that the investigation is being carried out in a timely manner. There are already significant pressures on resources available to the police, for example, in the analysis of computers and forensic evidence and those cases where the suspect is not on bail will inevitably be pushed to the back of the queue.

Are there any gaps or anything which has not been addressed that was expected?

It is disappointing that the proposed Bill is silent in relation to pre-charge bail conditions, and has not sought to bring about reform in this area. Although arguably the fact that there will be a presumption of release without bail will mean that fewer people are on bail, those on bail can still be subject to bail conditions. Indeed the need to impose conditions is likely to be a consideration when an inspector decides whether it is necessary and proportionate to release a suspect on bail. However, there is no suggestion in the Bill that anything will be done to ensure that there is a proper analysis of the proportionality of such conditions. It is currently the case that all too often wide-reaching and disproportionate conditions are imposed without proper considerations. Suspects can be prevented from seeing their children, restricted to a geographical area, not allowed to see friends, denied the ability to have a spontaneous night out or away from home. In public order cases bail conditions have been used to curtail the rights of individuals to protest and these conditions can have a ‘chilling effect’ dissuading others from participating in lawful protests and exercising their rights of freedom of expression and assembly under articles 10 and 11 of the European Convention on Human Rights. Those who consider that they have been subject to disproportionate and unnecessary conditions will still be able to appeal these decisions (in the first instance to the custody sergeant and then to the magistrates’ court). However, due to restrictions in legal aid funding very few are actually able to take advantage of these routes of appeal.

Furthermore, although the Bill introduces judicial oversight in to the length of time someone can spend on bail, the Bill is silent as to what the route of appeal would be should the defence wish to challenge the decision of the court to extend bail. It also does not consider whether public funding will be available for defendants to make representations to the court when they are deciding whether to grant bail. It is inconceivable that the cost of such representation would be adequately covered by the existing police station fixed-fee regime under legal aid.

Finally, the time limits set out under the Bill do not extend to those who are bailed for the purpose of CPS advice. Therefore there is still no time imperative for the CPS to review and come to a decision on cases in a diligent and expeditious manner. And experience from solicitors is that delays on the part of the CPS are often the main cause.

What does all this mean for lawyers and their clients? What should they do next?

Unless and until the Bill becomes law, there will be no immediate action for lawyers and their clients to take at this stage as even if the Act is enacted in its current form it is likely to only apply to police investigations commenced after the Act becomes law, and not retrospectively.

If the Bill does become law, solicitors will need to consider carefully with their clients how to best challenge the decisions, first by the superintendent and later by the court, made to extend bail. The Bill suggests that sensitive information provided by the police to the court in favour of an extension of time for bail can be withheld from the defence. However, we have the current practice of warrants for further detention where an officer can be cross-examined without revealing sensitive information. There is no reason why this practice should not be extended to the proposed bail extension hearing. Coupled with the fact that the magistrates’ court will only hold oral hearings to decide on an extension to bail where the total of time on bail would amount to more than 12 months, means that the defence’s ability to make effective representations could be hampered.

How does this fit in with other developments? Do you have any predictions for future developments?

It remains to be seen what the final impact of this Bill will be and whether it will represent a genuine sea change in the approach to pre-charge bail. A lot will hinge on whether the police and the courts give proper consideration to their obligations under the Bill, first in deciding whether it is necessary and proportionate to release a suspect on bail and then whether the conditions are met for the time to be extended. If no more than lip service is paid to these requirements then there is a real danger that the whole regime could turn in to a rubber-stamping exercise where there is still no finite time which a person can spend on bail given the fact that there are no restrictions on the number of times in which a magistrates’ court can extend bail.

This proposed change in pre-charge bail is being brought in at a time when there is more pressure than ever on public funds and resources. There is a risk that a two-tier police investigation system will develop whereby priorities and resources are focused solely on the ‘on bail’ cases and those not on bail will see their investigations progress at a snail’s pace. In order that the new proposals have the desired impact the government will need to ensure that there is a properly funded and resourced police service who have the capabilities to properly investigate all cases. Only then will the desired aim of the Bill, to bring about diligent and expeditious investigations, be achieved.

 

This article first first appeared on LexisNexis PSL