Something needs to be done quickly to deal with the mess created by restrictions on police bail, argues Ed Cape
In 2016 I published a paper arguing that police bail without charge should be abolished.
My argument was, essentially, that if the police do not have sufficient evidence to charge a person with a criminal offence, they should not have the power to exercise control over them by releasing them on bail and imposing conditions – such as a condition to reside at or not to go to a particular location, or a curfew – for an unlimited period of time.
Allowing the police to do this meant that ‘the process is the punishment’, a punishment that could be inflicted on a person who is never charged with an offence. In fact, about half of those people who are placed on bail without charge are never prosecuted.
My argument that police bail should be abolished was not accepted by the government, but by a strange turn of events, it appears to be what is now happening in practice. And the outcome is not a good one.
Regulating police bail
The power of the police to release on bail people who they have arrested, without charging them with an offence, did not attract public or political attention – despite the fact that about 400,000 people are held on police bail each year, many for more than six months – until some famous people (in historical sex abuse investigations), and those with influence in the media (in the hacking investigations), were arrested and placed on bail for months, and sometimes years.
Their outcry led Theresa May, then Home Secretary, to introduce legislation regulating police bail. The result was the Policing and Crime Act 2017, the police bail provisions of which came into force on 3 April this year.
The new provisions are complex, but essentially they mean that where the police are not in a position, or don’t want, to charge a person they have arrested, they must normally release them without bail. The release can only be on bail if it is ‘necessary and proportionate’, and it is authorised by a police inspector.
The difference between the two is that if a person is released on bail, the police can impose bail conditions, and can arrest the person if they break any of the conditions or if they fail to turn up at the police station when required. Failure to turn up is also a criminal offence.
If a person is released without bail, none of that applies – although the police can carry on investigating.
Police bail is initially limited to 28 days, but it can be extended to three months by a police superintendent, and further (unlimited) extensions can be granted by a magistrates’ court. Where a person is released without bail there are, by definition, no time limits.
Whilst these provisions did not go as far as I had argued, they sounded like the best one could hope for. How wrong I was.
A sorry story
I have spoken to many police station lawyers, and had a lot of exchanges with them on social media, and what they tell me is a sorry story.
The police are routinely releasing people they have arrested without bail – some say the police seem to have given up on using their bail powers. The result is that suspects have no idea whether the police are continuing to investigate, how long that is likely to go on for, whether the police will want to interview them again, whether they will be re-arrested, or whether they will eventually be prosecuted.
Lawyers get no joy if they contact the police – the investigating officer is either not available or not willing to give them any information.
Had the person been released on bail there would have been some certainty – they would at least have been given a date to return to the police station, which could provide some opportunity to obtain information.
The process is the punishment
Why would the police do this, I asked? After all, before the new Act came into force, the police routinely used their bail powers.
The answer seems to be that releasing a person without bail removes all the pressures associated with a release on bail. The investigating officer can take as long as they like with the investigation. They don’t have to justify it to a senior officer or to a court. They can pick up the investigation as and when it suits them.
And all the while, the ‘suspect’ has no idea what is going on – the process is the punishment.
I still believe that police bail should be abolished. But something needs to be done quickly to deal with the mess that the Policing and Crime Act has created.
There needs, at least, to be a robust system of review of investigations where the suspect has been released without bail – perhaps mirroring the level of authorisation, and the time limits, that apply where a person has been released on bail.
In addition, there must be an obligation to keep the person informed – of progress in the investigation and likely timescale. Otherwise, the new system is just plain cruel.
And my lesson from this – be careful what you wish for!