Articles Criminal Defence 27th Mar 2015

Proposed Reforms To Pre-Charge Police Bail

On the 18th December 2014, the Home Secretary Theresa May, stated that in March 2014 she had asked the College of Policing to look at the way that the police managed pre-charge bail. She had identified that complex investigations require a considerable amount of time, a balance had to be struck between that and the prejudice to those under investigation of being on bail for extended periods of time. She announced that a government consultation would be undertaken on a series of measures to reduce both the number of people subject to pre-charge bail as well as the duration of the bail period.

The measures to be consulted upon included:

  1. Enabling the police to release someone pending further investigation without bail in circumstances where bail is not considered to be necessary;
  2. Setting a clear expectation that pre-charge bail should not last longer than a specified finite period of 28 days, as recommended by the College of Policing;
  3. Setting the extenuating circumstances in which that period might be extended further, and who should make that decision;
  4. Establishing a framework for the review by the courts of pre-charge bail;
  5. Considering whether extension of pre-charge bail should only be available in certain types of case, such as fraud or tax evasion, or in all cases where there are exceptional reasons for an extended investigation;
  6. Considering how best to enable the police to obtain timely evidence from other public authorities; and
  7. Considering whether individuals subject to pre-charge bail should be able to challenge the duration as well as the conditions in the courts.

On the 6th February 2015, the Law Society provided its response to the Consultation. Most interestingly, the Law Society is opposed to an absolute fixed time limit on which subjects of investigation can remain on police bail stating that:

Do you think there should be an absolute maximum period of pre- charge bail?

No, we do not believe an absolute limit is appropriate or necessary. We accept that there will be complex investigations where more than six months, or even a year, may be required, and that the issue of limited resources can be a factor in such cases. It is not in the interests of justice for there to be an absolute limit. However, there is a need for transparency and accountability as to the conduct of investigations, which the current lack of any statutory limit on bail, and lack of judicial oversight prevent.

Further, the Law Society rejected the proposition that different types of offences should have different time limits on pre-charge bail. However, the Law Society contends that greater transparency and increased judicial oversight of the current system should form part of any proposed reforms.

As practitioners no doubt all know, judicial oversight of case management has increased markedly in the current climate of austerity and fiscal limitations within the criminal justice system. Judges are increasingly exercising their case management powers to ensure that delay and waste of stretched resources is kept to a minimum however limited attention has thus far been given to the need for efficiency and speed right at the outset of an investigation. All investigations into the efficiency (or otherwise) of the criminal justice system exclude the consideration of the length of pre-charge time. This gives a distorted view of the system. Delay and inefficiencies in the pre-charge period are not only unfair on the suspect but also have a negative effect on complainants and witnesses. A time limit for matters to be progressed will no doubt cause those investigating criminal activity whilst a suspect remains on bail to be more diligent in completing their enquiries. This will not only create greater transparency and fairness but will result in better, more focused and more successful prosecutions.

The Crown Prosecution Service is opposed to a statutory time limit on pre-charge bail asserting that this would lead an increased risk of subjects evading justice once the time limit had elapsed as well as an increase in the number of court hearings by some 300,000 per year at a cost of approximately £3.7million. It is noteworthy that they make the assumption that court appearances for bail extensions will increase rather than that a time limit will increase efficiencies on the part of investigating agencies.

The Government consultation closed just over a month ago on the 8th February 2015. The election will take place in May exactly eight weeks from today and therefore it is more than likely that any legislative amendments to encompass the Government’s proposals will not be passed before then. However, if the proposals do become law the one thing of which we can all be certain is that funding to represent suspects faced with police applications for extension of pre-charge bail will become yet another battleground between the Government and practitioners.

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