Review of the reforms to pre-charge bail – is the law the problem?

6 December 2019

On 5 November 2019, the Home Office announced that it will consider updating the reforms made in 2017 that limited the length of pre-charge bail to 28 days and introduced the current Released Under Investigation (‘RUI’) arrangements. 
 

Home Secretary Priti Patel announced that she intends to instigate a review of the legislation ‘to ensure we have a system which more effectively prioritises the safety of victims and witnesses and the management of suspects’.

This regime came under scrutiny this week with the BBC reporting that “more than 93,000 suspected violent criminals and sex offenders have been released without restrictions by police in England and Wales since 2017”.

Pre-charge bail

Before 3 April 2017, there had been no limit on how long a suspect could be on pre-charge bail. This meant that individuals could be on pre-charge bail for months or even years with no charge and conditions which impact their private life.

Following a number of widely publicised investigations where suspects had been arrested and released on bail for years following spurious allegations, there was mounting pressure on the government to reform the law. One of the most high profile cases was Paul Gambaccini – the well-known TV and radio presenter who was arrested as part of Operation Yewtree in November 2013 and spent almost a year on police bail before being cleared.

Under the Police and Crime Act 2017, the government issued a 28-day police bail time limit, with a presumption that people will be released under investigation.  The reforms were supposed to prevent people languishing in legal limbo for years on end, with the Home Office stating that the reforms would ‘rebalance the police’s use of bail in the interests of fairness.’

Released under investigation (‘RUI’)

Despite the reforms being largely welcomed at the time they were introduced, in practise the 28 day time limit has proved onerous and tricky to police. Tight police resources mean that the time limit has been called ‘unrealistic’ and instead of bailing suspects and using their already scant time and resources to seek extensions, more than 80 per cent of criminal suspects are now released under investigation rather than on police bail.

Being RUI means that the suspect is released without conditions while the police investigation is still on-going. The average length of investigation is much longer than police bail so instead of reducing the time that suspects spend with an investigation looming over them, it has actually significantly increased it.

Responses to a recent survey of firms conducted by the London Criminal Courts Solicitors’ Association indicate that more than half of firms represent clients/suspects who have been waiting for between 18 months and two years under RUIs.

Unlike someone who is released on bail, suspects released under investigation are released with no time limit and are not subject to any conditions. They are given no indication of how long they will be released under investigation for and are told they will be notified at some unspecified point of the outcome of the investigation – there is no obligation on the police to give updates on the progress of the case.

The National Police Chief’s Council (“NPCC”) issued guidance in 2019 in which it was recommended that suspects who are RUI should be updated every 30 days regarding the status of the investigation.  However, in practice, the majority of police officers, who typically have very large caseloads, just simply do not have the time do this.

This uncertainty can cause much anxiety and distress for all those involved – including victims. RUI is being used for a full range of crimes; including indictable offences such as murder. There is not a standardised process for assessing risk to the public.

Review of the reforms

The announcement that the government, were it to be returned, will review the current system is undoubtedly positive as the reforms clearly have not had the intended effect. However, I think it is fair to question whether the problem is the law itself or whether this is another symptom of the chronic underfunding of the criminal justice system.

The rhetoric surrounding the new reforms appears to focus on the impact delays and how the inability to impose bail conditions affects victims.   With a general election in the coming weeks, it is perhaps unsurprising that suspects’ rights are not the focus of attention. However, in the rush to implement victim focused reforms, it is vital to consider the reasons why the changes to police bail were made in the first place i.e. to protect those who are investigated (and who may well be innocent) from being subjected to extended delays and uncertainty. 

As we recognised in our blog published on the day the reforms were introduced in the 2017, underfunding of the criminal justice system will continue to cause delays in investigations, despite what the letter of the law is. Unless the legislation is reviewed with this is mind, imposing new time limits or obligations on the police will simply not be realistic.

Ensuring that the necessary care and attention is given to every case is no small task and in the majority of cases the reason that investigations are being delayed is not through lack of trying of the agencies involved.  Growing caseloads of officers and an increasing reliance on forensic analysis of evidence are just two factors which can lead to long waiting times for defendants and complainants. This, in the context of the continuing cuts in funding to public services, is clearly pushing our current system to breaking point.

The prompt and effective conduct of investigations is key to ensuring that the rights of complainants and defendants are adequately protected. This can only be done if the police are provided with adequate resources to reach this expectation.

Further Information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

 

About the Author

Maeve is an Associate in the Criminal Litigation team. She joined Kingsley Napley as a Trainee Solicitor in September 2016. Maeve read law at King’s College London and obtained a distinction in her LPC from BPP Law School earlier this year.

 

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