Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
Changes to police bail come into force today amid a police outcry. “Sex offenders and serious criminals could escape justice”, said one headline: paedophiles and murderers could be free to walk the streets; police forces won’t know who is under investigation – this hyperbole is designed to be provoke debate and to draw attention to the fact that the police do not think the time limits they have been given are long enough.
The problem with the criminal justice system is that it is underfunded:
In recent years there have been many cases of defendants being left in limbo for years – professionals cannot work in their chosen fields because of allegations which are under investigation; peoples’ lives are left on hold. Police bail conditions can be onerous prohibiting contact with people or attendance at police stations.
Something needed to change and so this Government acted – they passed the Policing and Crime Act 2017 which for the first time imposed time limits on the period of time that a person could be kept on police bail.
For those individuals arrested on or after 3 April 2017 there is now a presumption that they will be released without bail unless the following conditions are met:
A. The person granting bail has reasonable grounds for suspecting the person to be guilty of the relevant offence;
B. There are reasonable grounds for believing that:
Further time is needed for making a decision as to whether to charge the person with the relevant offence, or
Further investigation is needed of any matter in connection with the relevant offence
C. The decision as to whether to charge the person with the relevant offence is being made diligently and expeditiously, or that the investigation is being conducted diligently and expeditiously
D. There are reasonable grounds for believing that the release on bail is necessary and proportionate in all the circumstances (having regard in particular to any conditions of bail which are, or are to be, imposed.
In those cases an inspector can release an individual on police bail for no more than 28 days. At the expiry of that 28 days a superintendent can impose a three month extension if the above criteria are met and consideration has been given to any representations made by the person or their legal representative. This period will be known as the “applicable bail period”. Thereafter any additional bail period must be granted by the Magistrates’ Court, who will consider whether criteria B to D are met; if they are the Court must then consider whether the decision to charge is unlikely to be made or the investigation completed if the applicable bail period is not extended. .
It is important to note that the applicable bail period is suspended whilst a police file is in the possession of the CPS for a charging decision – if the file is returned to the police for further investigation then the period restarts. It will be essential for all defence practitioners to be aware of, and alert to, this stopping and starting mechanism.
Whilst change was needed, without the necessary funding required to ensure that all parts of the system work, the most likely result of these reforms is that investigations will continue to take significant time. Without police bail there will be nothing to focus the minds of the police officers or CPS; particularly given their often very large caseloads. Individuals will now remain under a cloak of suspicion and investigation for long periods without any certainty as to their status or the progress of the police investigation. Time will tell whether these reforms will bring about the “safeguards of public accountability and independent scrutiny” cited by Amber Rudd, the Home Secretary; in the meantime we need a full scale review of funding for the Criminal Justice System so that we do not have to continue explaining to defendants, victims and witnesses why the whole process took so long.
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