Today marks thirty years since I started work at Edward Fail, Bradshaw & Waterson Solicitors as a trainee solicitor. My training principal was John Lafferty, who ran the firm for many years before becoming a Crown Court Judge at...
Over the last few years there has been much coverage in the press about the lengthy periods suspects remain on bail.
In particular there have been a number of high profile cases where celebrities have been on bail for many months facing serious allegations before the investigations have concluded without charge.
The then Home Secretary Teresa May responded to this by introducing a policy to limit bail periods only to be extended by application by the police to the Magistrates Court. Clause 62 of the Policing and Crime Bill currently going through Parliament would insert new sections into the Police and Criminal Evidence Act 1984 limiting the period by which a suspect may be released on bail after arrest but before charge and making provision for applications to extend that period.
On the face of it a proposal to limit and monitor periods on bail seems like an important mechanism to protect the interests of the suspect facing the uncertainty of long periods on police bail, but the reality is that proper analysis of this legislation demonstrates that this is no more than a policy written on the back of a cigarette pack without any proper research into impact and effect.
Most Importantly it will not achieve what was intended; arguably it will have the opposite effect. Many Suspects who are arrested by police will not be released on bail commencing the 28 day bail period (3 months if it a Serious Fraud Office Enquiry) but will simply be released without any further action being taken. The reality is certainly not that no further action will be taken but police will continue their enquiries and if they obtain further evidence they can rearrest on the basis of that new evidence (and are not limited to the 28 day period) or alternatively once they have enough evidence to charge they can simply issue a requisition. Under this scenario there will be no monitor or check on the investigation which at least the current system of long bail dates provides to some extent. If anything pressure on the police might be relaxed under this proposal and the suspects will be even more in the dark.
There will be cases though where the police will need to bail and impose bail conditions. Consequently they will need in many cases to seek extensions if they cannot complete their enquiries within 28 days. We need to look at what that process will involve and how that will affect the criminal justice system already creaking through years of underfunding and cuts. The police will need to file an application with the court and serve it. The suspect will also be entitled to be given notice of the application and details of the basis of the application for an extension and be entitled to respond. Although the courts will not in most cases have hearings Magistrates will need to consider these applications. It is anticipated that there could be hundreds of thousands of these applications. So the police will have to prepare the paperwork, the suspect will be served and be entitled to respond and the Magistrates will then have to consider each application. Disclosure will of course be a factor; the police will understandably have some material they will be willing to provide and other material which will be sensitive to the enquiry at that stage that they may be able to provide the court but not the suspect. The new legislation will introduce the criteria for considering such applications but it is obvious that this process will create substantially more work for the police and the courts. With courts being shut up and down the land how will the Magistrates Courts absorb this extra work?
Then of course is the issue regarding representation of the suspect. Currently the legal aid provisions provide one fixed fee for attendance at the police station. This fee which varies from area to area ranges from £150 to £250. That fee is paid for attendance at the police station, bail to returns, identification procedures, additional interviews etc. Only in very exceptional cases where the attendance involves many hours is there scope for an increase in the fee. Will defence solicitors be expected to also prepare documents opposing applications to extend bail for the same fixed fee? To respond properly and consider the relevant issues is that remotely realistic?
Then of course there are those defendants who can afford to pay for representation and seek to challenge some of these decisions re extensions of bail in the Divisional Court. The divisional court could face many challenges which involve dealing with difficult and sensitive disclosure issues.
In many respects the new rules introduced by this legislation will be yet another example of how we have a 2 tier justice system and those with money will have access to better quality justice than those without. Those in funds will fight every step of the way if necessary to challenge every aspect of the police application to extend, focussing in detail on what is disclosed, perhaps arguing for greater disclosure, etc perhaps instructing silks to advise and as set out above potentially having the ultimate remedy to go the Higher courts. Their capacity to fight these applications, to argue the potential conditions that might be imposed and to take legal arguments will be far greater than those in receipt of public funding. The MOJ may not want to hear this but it is blatantly true.
I completely agree that the amount of time many suspects are on police bail is unacceptable. I recognise in theory how some kind of judicial supervision of such enquiries makes sense and potentially provide checks on such enquiries, but this legislation as currently drafted is not the way forward, it does not solve the evil it is intended to address and ultimately will create so much extra work that a system almost on its knees may collapse. I suspect that most of the agencies, defence, prosecution, courts and judges will agree with this analysis. I wonder to what extent any consultation took place with those at the coalface expected to deliver this mess.
Although it relates to a different issue part of the problem of course relates to the identity of the suspect being made public before a charging decision is made. Many suspects although still undoubtedly stressed by being under investigation for long periods of time might draw considerable comfort from at least remaining anonymous until charge or even conviction. Food for thought.