Changes to pre-charge bail in Policing and Crime Bill - about time

11 February 2016

The Policing and Crime Bill is navigating its way through the House of Commons, with the first reading taking place on the 10 February. There are a number of interesting provisions in the Bill relating to sexual offences, firearms and the treatment of young people, but what caught my eye were the provisions reforming pre-charge bail. We at Kingsley Napley have called for change in this area for a number of years.

Whilst conditions of bail can be challenged at the magistrates’ court, the length of time that a person is subject to bail cannot. Many investigations are complex and lengthy, taking months or even years, especially in fraud cases for example. The fact there are currently no restrictions on the length of time a person can spend on police bail can create lengthy periods of uncertainty for individuals, their families and victims. We have seen this recently in various cases within Operation Yewtree, during which celebrities such as Jim Davidson were left on bail for long periods before being told they would not face charges. Paul Gambacini has been very vocal in the media, and before Parliament, about the impact on his life after he was arrested on suspicion of historical sexual abuse and placed on bail for a year before the case against him was dropped.

Indeed, Sir Bernard Hogan Howe has just announced a review of Operation Midland with High Court judge Sir Richard Henriques set to examine a number of investigations involving non-recent sexual claims against public figures.

However, whilst high profile figures have shone a light on this issues we must not forget that this issue affects thousands of non-celebrities every day, often with a devastating impact on all concerned.

An increasing trend for “reactive arrests” means individuals are often arrested before investigations are at a stage where they can be charged. Moreover,  interviews under caution are used as an information-gathering tool and to aid the police in their investigations. Very restrictive conditions can be imposed as a condition of police bail — people can be prevented from entering their homes (where there are domestic abuse allegations, for example) and businesses. Individuals can be required to submit to curfews, report regularly at a police station, reside at a certain address, surrender their passports, and be prevented from travelling and prohibited from talking to certain people. There is therefore no recourse for individuals waiting for lengthy investigations to be concluded and no means of forcing the police to complete them.

All of these place severe limitations on individual liberty when a person has not actually been charged with an offence and in some cases never will be. Devastating consequences ensue for people’s lives, livelihoods and reputations.

So what is proposed?

Chapter 1 of Part 4 of the Bill provides that pre-charge bail will be initially limited to 28 days, with one extension to three months able to be authorised by a senior police officer in complex cases.

In exceptional circumstances, the police will have to apply to a magistrates’ court for an extension beyond three months.

All decisions to impose or extend bail, taken by either the police or the magistrates’ courts, will have to consider three conditions, namely that:

  • further time is needed to gather the evidence needed to make a charging decision;
  • the investigation is being carried out diligently and expeditiously; and
  • bail (including any conditions) continues to be both necessary and proportionate.

In cases under investigation by the Serious Fraud Office the initial bail period will be 3 months because of the complexity in large fraud cases and In exceptionally complex cases, such as those dealt with by the Serious Fraud Office or the Central Casework Units of the Crown Prosecution service, it will be possible to extend bail administratively to a total of six months before seeking the approval of the courts; the same tests set out above will apply in such cases.

These reforms are welcome and necessary – the fact that the decision to extend could be taken by the magistrates court is a positive move. However this does not go far enough. I would call for all decisions to extend bail to be taken by a Magistrate.  This would ensure effective scrutiny and proper judicial oversight. 

Further information

For further information, please contact John Harding, or visit our Criminal Litigation pages.

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