Police bail: An unaccountable anomaly?

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Background

This article intends to deal with the situation whereby a person is suspected of committing a criminal offence. After arrest, interview, or both, the police have three options at their disposal:

  1. They can either issue a ‘no further action’ (NFA); this means the suspect will not be charged and no further action is to be taken unless any new evidence comes to light;
  1. They can charge the suspect; if the police, in conjunction with the CPS, believe they have enough evidence then the suspect will be charged. The suspect will be given a date to attend court whereby the matter will be tried; or,
  1. If they are unable to make a decision as to wither of the above they may want to carry out further enquires. They must release the suspect on police bail. This means the suspect must return to the police station at a certain time whereby the police envisage they will be in a position to issue either an NFA or to charge the suspect. In addition to this, the police may impose conditions on the bail which may mean the suspects movements are restricted; the suspect may have to remain residing at a particular address; the suspect may have to regularly report to a police station; the suspect may have to obey a curfew; the suspect may even have to provide a financial guarantee.

The issue

There is clearly a fundamental problem associated with imposing restricting conditions on a person’s day to day life, bearing at mind they have not been convicted before a court of any crime. Juxtaposed with the doctrine ‘innocent until proven guilty’, which is enshrined into our legal system, there would seem to be an anomaly with this alone; however, this article will go on to explore the many other anomalies associated with police bail.

The Law Society of England and Wales says people are often left ‘in the wilderness’ while police decide whether or not they should be charged with a crime.[1] The Law Society’s statement provides a helpful starting point when looking at the impact this can have on people’s lives. Not only are people left with the whole issue effectively hanging over them, it can have further consequences even if there are no conditions attached to the bail. Depending on the person’s job, they may have to declare it to their employer. This may result in them being suspended until the matter is concluded; in some cases employers have gone further.

Take Steven for example, a former teaching assistant from Newcastle. He was arrested and on bail for five months before he was told that no further action would be taken. He was arrested in connection with an allegation of sexual assault, which turned out to be false. Steven said being on police bail and waiting for a decision from the CPS could have a big impact on the lives of those arrested. He said: “I was suspended from my job and I was scared to leave the house because I was paranoid that people knew I was a police suspect. I became severely depressed and contemplated suicide. The uncertainty of not knowing when my ordeal would be over was awful.”[2]

This clearly shows how police bail can have a substantial impact on a person’s life. This is argued by supporters to be fair and proportionate; Chris Eyre, from the Association of Chief Police Officers, said police bail was “an essential tool in securing justice.” He said the process allowed investigators to explore every possible avenue, while those arrested “need not remain in custody”.[3]

This argument is flawed under the current system for the following reasons:

  1. The suspect has no, or limited, right to be given information as to why bail or bail conditions are considered to be necessary.
  2. The suspect has no right to make any representations regarding either bail or conditions.
  3. Even if they are able to make representations, the officer making the decision is under no obligation to take them into account.
  4. There are very few limitations on the conditions that can be imposed, and no special provisions for juveniles or other vulnerable suspects.
  5. Conditional bail is not limited by reference to the seriousness of the suspected offence, and there is no time limit on the period for which bail can be imposed.
  6. Judicial involvement is limited to varying or removing conditions, does not in practice extend to the decision to bail itself, and is available only at the instance of the suspect.
  7. As a result, in terms of procedural justice, a suspect who has not been charged with a criminal offence is at a significant disadvantage compared to a person who has.

A considerable problem relates to the fact that no time limit is imposed. The BBC’s article last year showed that, at the time, over 57,000 people were on bail. Of these, well over 3000 had been on bail for over six months. One person had been on police bail for over 3 and a half years.

Ed Cape and Richard Edwards, writing in the Cambridge Law Review undertake a comprehensive evaluation on the use of police bail, specifically in regards to its compatibility with human rights issues. They conclude that it is incompatible with Article 5 of the European Convention on Human Rights. The Convention requires that following arrest, a person must promptly be brought before a judge or other judicial officer. Whilst Article 5 does embrace the notion of conditional release, this is only at the instance of a judge or judicial officer. A police officer cannot be a judicial officer for this purpose, and the police are not absolved from the obligation of prompt production by granting bail. The purpose of the requirement of prompt production is not only so that a decision about release may be made, but also to enable the legality of the arrest to be judicially reviewed. They also go on to argue potential breaches, depending on the circumstances of Article 8, Article 10, Article 11 and Article 14. The full article can be found here.

Conclusion

It can be seen that the police have extensive powers to control and supervise people who have not been found guilty of any offence. This is not in line with the rule of law, specifically the aforementioned doctrine of ‘innocent until proven guilty’. As the police powers are subject to limited judicial oversight the police appear to be wholly unaccountable in respect of their actions in this area. Cape and Edwards state that as a result, ‘It is surely time for them to be fundamentally re-assessed’.[4]

 

Dale Timson

LLB (Honours) Student & Aspiring Barrister

11/05/2014

 

 

[1] http://www.bbc.co.uk/news/uk-22624648

[2] http://www.bbc.co.uk/news/uk-22624648

[3] http://www.independent.co.uk/news/uk/home-news/home-office-pledge-to-review-excessive-time-spent-on-bail-is-ignored-by-government-8635066.html

[4] http://eprints.uwe.ac.uk/12497/1/CambridgeLawJournal69(3).pdf

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2 thoughts on “Police bail: An unaccountable anomaly?

  1. Interesting blog Dale. Thank you.

    With regard to police options at the conclusion of interview processes and No.2 in particular. There are other disposal options in addition to charge. Restorative justice, fixed penalty notice, caution and conditional caution. A further minor observation is the reference to ‘in conjunction’ with the CPS. It is true that we work closely with the CPS on charging decisions. However, the police do make many decisions to charge without reference to the CPS at all.

    I would agree that over the years there has been some abuse of the bail process and the imposition of conditions. That said it is not a wholesale disaster area. The police cannot just impose conditions because they feel like it. They have to be proportionate and there is a safeguard built in to allow those conditions to be removed or varied by the custody officer.

    Bail for over 3 years is, of course, wholly disproportionate. So the question would be ‘what is acceptable?’ During the last discussions The Law Society called for a 28 day limit on bail. This was quite possibly the daftest suggestion to come from them in some time. I did blog about this at the time here;

    http://thecustodyrecord.wordpress.com/2013/05/28/bailing-out/

    As I pointed out in my blog, The Law Society completely overlooked the victim and reading the your blog you have fell into the same place.

    Should a person be on bail forever without any questions being asked? No

    Should a person be subject to restrictive bail conditions that are disproportionate to the offence alleged? No

    If a person is suspected of stalking and harassing a person in their home, at work on their phone and across social media and has to be released on bail would conditions be appropriate? If the investigation to establish all the facts is tied up with phone company records, eForensic examination of several devices and liaison with the likes of Facebook it is going to take some considerable time. Would it be wrong, even if innocent, to impose conditions on a person that prevented them from visiting that persons home or workplace? Would it be wrong to impose a condition that prevented them from contacting that victim by any means whatsoever? I would strongly argue that those conditions would be highly proportionate.

    If a suspect is likely to flee the country if released on bail would it be disproportionate to impose a bail condition that they sign on each and every day and surrender their passport?

    The crux of the matter is that bail is a complex area and each and every case has to be judged on its own circumstances. It is not a one size fits all situation.

    All of the delays listed in my blog in 2013 are still delays today. The police as a whole need to look at how we resource such investigation and eForensics in particular. ACPO need to look at ways to streamline the process of capturing evidence from social media platforms and the Home Office need to put some serious funding into this area as the geography of crime is changing.

    Only when the police have the funding and appropriate resources in place to tackle the delays with bail can an effective measurement and accountability strategy be put in place. Anything before this will simply create more backlogs and problems.

    This is a matter that is not solely the responsibility for Chief Constables to resolve.

  2. Thank you for your comment which I feel adds both depth and perspective to my article.

    First, I would briefly respond by mentioning in respect of No.2 that I am aware of the other options of disposal; however, I did not want to go off on a tangent discussing these, neither did I want to do the same in respect of the charging decision. I appreciate the police can, and often do, make charging decisions independently of the CPS.

    I fully take on board your other comments; however, in my humble opinion, I do not feel your response addresses the key question posed, namely, that of accountability. I fully appreciate in respect of bail, particularly rebail decisions, that there are supposed safeguards built in whereby senior officers review the case before authorising conditions or further rebails. I respectfully submit that this is not adequate nor sufficient. The crux of the matter is that the people reviewing the case are ultimately other police officers, albeit more senior. 9 times out of 10 they are going to back the investigating officer with little to no thought about the suspect. The suspect has no opportunity to make any representations regarding their situation, nor will any be taken into account if the suspect goes out of their way to make them. As my article points out this is essentially incompatible with Article 5 of the European Convention of Human Rights. I would highly recommend reading the full article by Cape and Edwards which can be found at reference point 4 in my article.

    Next, the victim. I recognise that protection of the victim is a paramount consideration; however, I would respectfully submit that the rights of a suspect must always hold equal weight and consideration. A suspect is not guilty of any crime until they have been convicted before a competent court. This is trite law. Therefore, until that point they must be equally protected. This is particularly true in light of numerous statistics which reveal a somewhat frightening picture regarding the number of false complaints which are made, particularly in relation to sexual offences.* In these circumstances it is actually the suspect who is the victim. It is for precisely this reason that further safeguards are needed. I would highly recommend reading the following study; it was not included in my original article but, in my opinion, it does provide some good consideration in response to your original blog on the matter:

    http://www.college.police.uk/en/docs/Pre_charge_bail.pdf

    I am also aware of the Law Society’s proposal in respect of the 28 day limit. I am not in favour of this, and as a result, it was not mentioned in my article. For the reasons in which you outlined I fully appreciate it can often take much longer than this in order to retrieve evidence in certain circumstances.

    The issue lies with the unaccountability of the police in respect of bail. I would submit that a form of judicial intervention should be permitted, allowing a suspect to challenge the fact that they are even on bail. This would enable a judge to review the investigation and decide as to the reasonableness of the whole matter, particularly in respect of whether the investigation is being conducted in a reasonable timescale. It would allow the suspect to make representations and for them to be considered. It may also automatically have a positive effect on many investigations as the police would arguably carry out investigations more expediently knowing their actions could be challenged before a judge. It would ultimately allow the final decision to rest with the judiciary as opposed to a senior ranking member of the police who, in my opinion, are almost completely unaccountable.

    Dale

    *There are many statistics available in respect of this. They vary widely. One study found a staggering 40-50% of sexual assault claims to be false. Another found it to be as low as 5% Whichever statistics you believe it has nevertheless been a recognised problem.

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