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:
- 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;
- 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,
- 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.
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. 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.”
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”.
This argument is flawed under the current system for the following reasons:
- The suspect has no, or limited, right to be given information as to why bail or bail conditions are considered to be necessary.
- The suspect has no right to make any representations regarding either bail or conditions.
- Even if they are able to make representations, the officer making the decision is under no obligation to take them into account.
- There are very few limitations on the conditions that can be imposed, and no special provisions for juveniles or other vulnerable suspects.
- 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.
- 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.
- 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.
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’.
LLB (Honours) Student & Aspiring Barrister