When the police arrest a person on suspicion that they have committed a criminal offence, they can detain the suspect in a police station whilst they carry out an investigation, including by questioning the suspect.
However, the period of detention is subject to statutory time-limits – initially 24 hours from the time of arrival at the police station – although (provided certain conditions are satisfied) this may be extended to 36 hours by a senior officer, and up to a total of four days by a magistrates’ court. If, at the end of this time, the police want to carry on the investigation, without charging the suspect with an offence, they must either release them on bail or release them without bail (a release under investigation).
If the suspect is released on bail, they can be arrested if they do not return to the police station on the due date, or breach any conditions imposed. These powers are not available if the suspect is released without bail, although they could be arrested if new evidence has come to light that was not available when they were initially detained, or if they are suspected of committing an(other) offence.
This has been the position for many years, for most of that time without attracting much, if any, media or public attention. However, the arrest and subsequent bailing of high-profile figures in the historical sex abuse and newspaper hacking investigations earlier this decade, led to something of a media campaign to change the law. Perhaps most notably, Paul Gambaccini complained of being placed on police bail for almost a year in connection with a historical sex abuse allegation, during which time he was re-bailed six times, before being told that the investigation was being dropped. His and other high-profile cases led to the uncovering of widespread abuse of police bail without charge.
Eventually, the College of Policing estimated, on the basis of partial data (partial because most police forces were not routinely collecting, or reporting, the information), that in the 12 months from April 2013, over 400,000 people were placed on police bail without charge, 26,000 (6 per cent) of whom were on bail for more than six months. Research by Professor Anthea Hucklesby in two police forces found that nearly half of those placed on police bail were neither charged nor had any other formal action taken against them, and that the police often knew from the outset that no action would be taken. The Home Office accepted that, whilst there was no official data, people from black and ethnic minority backgrounds, as well as those with mental health problems and learning disabilities, were highly likely to be disproportionately subjected to police bail.
As a result, Theresa May, the then Home Secretary, steered the 2017 Policing and Crime Act through parliament, introducing a new statutory regime governing police bail without charge. The Act did not, in fact, create an overall time limit on police bail. What it did do was to establish that, initially, the police can only bail a person for 28 days, although this can be extended by a senior police officer to a total of three months, and thereafter it can be further extended by a magistrates’ court, ultimately indefinitely. Importantly, it also provided that, generally, the police can only release a person on bail without charge (rather than releasing them without bail, i.e., without any restrictions) if a release on bail is ‘necessary and proportionate in all the circumstances’, and only on the authority of a police officer of the rank of inspector or above.
Based on evidence from other attempts to regulate police conduct, I expected that the new statutory regime would be ineffective in reducing the use of police bail without charge, which was a major government aim of the legislation. Over 30 years ago, the 1984 Police and Criminal Evidence Act introduced a provision restricting the power of the police to detain an arrested suspect in custody unless detention is necessary to secure or preserve evidence or to obtain evidence by questioning the suspect. All the evidence suggests that the requirement that detention be necessary has never prevented the police from detaining arrested suspects when they want to – detention following arrest is, in practice, routine.
The power of arrest is also subject to a necessity requirement – in addition to having reasonable grounds for suspicion, a police officer must also have reasonable grounds for believing that detention is necessary (for a range of statutorily defined purposes). Here, both the case-law and the research evidence are a little more mixed, although the courts have been willing to give police officers a wide degree of latitude, provided that an arresting officer at least applies their mind to the question of necessity. In other words, the necessity requirement has never significantly inhibited the police before.
However, the police response to the new bail regime has confounded expectations. The evidence suggests that from the outset, the police have largely avoided using their bail powers, and have instead released suspects without bail. It is notable that the acronym RUI, which is now applied to such a release, has only gained currency since the legislation was introduced. The legislation came into force in April 2017, and by October of that year, Professor Michael Zander was reporting, in an article in Criminal Law and Justice Weekly, a dramatic drop in the use of police bail without charge. The latest evidence comes from the Law Society, based on evidence collected using FOI requests by the law firm Hickman and Rose.
The figures are quite staggering. For example, in the Nottinghamshire force, in 2016/17 (the last year before the new regime came into force) 7,392 people were released on police bail without charge. In the following year (the first of the new regime), that had dropped to 562 people, with 4,728 people being released under investigation. In London, in 2016/17 67,838 people were released on police bail, whereas in the following year the figure was down to 9,881, with 46,674 people being released under investigation.
How can this dramatic change in police behaviour be accounted for? In his 2017 article, Michael Zander expressed doubt that it resulted from police custody officers suddenly, and fully, embracing the new requirement that a person should be placed on bail only if it is necessary and proportionate. As he said, ‘[g]iven [custody officers’] strong belief in the value of bail, that proposition only has to be stated for its obvious improbability to be apparent’. Whilst not discounting the possibility that the police were misinterpreting the new law, Zander concluded that the most likely explanation was that the police who are required to operate the new law (primarily investigating and custody officers) had ‘taken against this reform’ and are discounting what they had previously argued were the benefits of police bail in order to reduce workload and the scrutiny of the progress of investigations. Whilst evidence is limited, I believe that this is the most likely explanation, especially in the context of the massive cuts to police budgets since 2010.
Whilst there are no statistics on the profile of suspects released under investigation, in terms of the seriousness of the suspected offence and any offending history, the Law Society report gives a number of examples of cases where people suspected of serious offences, and sometimes repeated offending, have been released under investigation rather than on bail. These do suggest that the police are not using their powers to bail suspects even where the statutory conditions are satisfied. However, the conclusion that this creates a risk to the public requires some caution.
Bail is not a panacea from the police perspective. If a person on bail fails to turn up at the police station when required, or breaches their bail conditions, they can be arrested. However, if the police are still not in a position to make a charge decision in respect of the original suspected offence, they will simply have to release the suspect again unless they are suspected of a new offence – but in that case they could have been arrested anyway. It may be that the reason why the police have dumped police bail so readily is that they recognise that it is of limited value.
The major problem, which takes us back to the beginning of this sorry story, is that there is no limitation or regulation governing the length of police investigations. Whilst the regulatory regime governing police bail without charge may encourage the police to investigate more efficiently and timeously, the regulations govern bail and not investigation. It is perfectly possible for an investigation to continue despite the fact that a senior police officer, or a magistrates’ court, has refused to extend the bail period. In that respect, a person who has been released on bail is in the same position as a person who has been released under investigation.
However, it must be accepted that a person who is on bail is more likely to be kept informed, at least to a limited extent, of the progress and likely timescale of the investigation than a person released under investigation. There is no obligation on the police to keep suspects released under investigation informed of whether the investigation is continuing or when it is likely to be completed – both suspects and their lawyers complain that they are left in limbo.
Therefore, what is necessary, leaving aside the question of police resources, is a change in the law that both:
- Regulates the length of police investigations
- Introduces an obligation on the police to regularly inform the suspect of the progress of the investigation
A regulatory regime mirroring the bail regime could be appropriate, although to be workable, the timeframe would need to be adjusted and, most importantly, it would need to be simplified. This is, in effect, what the Law Society has proposed, although it would be hard to discern this from the press reports.
If it is correct that the reason why the police have opted for release under investigation rather than bail is because police officers want to reduce workload and scrutiny, then an approach that removes those perceived advantages is the one that is most likely to be effective.
Ed Cape is Emeritus Professor of Criminal Law and Practice at University of the West of England, Bristol and one of the Centre's trustees.