Lexis Nexis interview: Helping suspects held in “Released Under Investigation” limbo

Brett Wilson LLP partner Nick Brett considers the impact on suspects released by the police under investigation. 

Corporate Crime analysis: The London Criminal Courts Solicitors’ Association (LCCSA) revealed extreme delays to cases where people accused of crimes (including fraud, bribery and theft) are kept for long periods on Released Under Investigation (RUI), in survey findings published in June 2019. The LCCSA warned this amounted to a ‘legal limbo’ where suspects endured months or years of difficulty where their RUI status impacted the job prospects, social life and emotional stress. Nick Brett, partner at Brett Wilson, considers the survey’s findings and how practitioners should advise their clients who are RUI.

What are the key findings for practitioners? Why have the number of cases which have been RUI increased?

The key finding in the survey for practitioners is probably not a surprising one—the police release an awful lot of suspects under investigation prior to the making of any charging decision.

In April 2017, the law changed when the Policing and Crime Act 2017 amended the Police and Criminal Evidence Act 1984 introducing restrictions to the amount of time that persons could be put on police bail (bail prior to charge). It is now 28 days save in certain defined circumstances. Prior to this, the concept of being ‘RUI’ did not really exist as suspects were generally bailed pending investigation and charging decisions.

Up until the restriction on police bail, there was considerable complaint from practitioners about the length of time that suspects were being placed on police bail. In corporate and other lengthy investigations, this could often result in restriction on liberty because suspects were being released on police bail with conditions, often for years. Sometimes, for example, such conditions could require suspects to live at a particular address or even surrender their passport. While the conditions were subject to potential review by the courts, the courts would often be reluctant to interfere where they were told that sensitive information existed. The new limitation on police bail restricts such imposition on liberty quite properly in my view.

More than half the solicitor respondents said they have ongoing cases under investigation which have lasted between 18 months to two years. What is causing these delays? What can be done to prevent further delays occurring or fix the problems?

There is no question that the delays being caused in police investigations that lead to suspects being RUI for long periods are for the same reasons that suspects used to be released on police bail for long periods. Public funding cuts have impacted dramatically on police resources and those of other investigative agencies. There are fewer officers to investigate and there are less resources to spend on forensic science services and other resources which provide the evidential support for prosecutions. This has led to the new fashion in private prosecutions—corporates and individuals effectively taking matters into their own hands. I think the only thing that can be done to fix these problems is to provide the police and related organisations with greater resources to increase staffing numbers and improve technology. I believe it is as simple as that.

To be clear, and without wishing to be political, my experience leads me to believe that investigations have lengthened fairly substantially since around 2010 when the austerity policies of this government were first introduced as opposed to say from 2017 when suspects started to be RUI. This lack of resources has impacted on police investigations in other ways which are outside the remit of this discussion.

Will further government reform be required to remedy this in the long-term and what is the likelihood of this making a difference?

For the reasons stated above, I think the delays are being caused by the lack of resources as opposed to the April 2017 change in the law. I think it is preferable for suspects to be RUI as opposed to police bail. Restricting the liberty of suspects who have not been charged with any offence raises Article 5 of the European Convention on Human Rights (ECHR) considerations which it is difficult to adequately mitigate. The concept of being RUI which, while distressing, does not impact Article 5, ECHR rights to anything like the same extent is preferable in my view. Putting the resources issue to one side for a moment, the reality is that, particularly in complex fraud investigations, investigators and prosecutors need time to gather and assess evidence. It is only where there is a restriction on liberty that the state is required to act in order to be compatible with the ECHR.

What is the impact on suspects who are kept waiting during these delays?

Of course, it is very distressing for a suspect—and particularly young and other vulnerable persons—to have to wait to find out whether or not they are going to be formally charged with a criminal offence. The LCCSA findings from the survey of its practitioners demonstrates that such impact includes:

• deterioration in mental health

• impact on family life

• difficulties with employers

• immigration

• education

The true impact on the justice system of the funding cuts to police resources in particular is one of the hidden effects of the austerity years.

What practical steps can criminal lawyers take to help suspects held in this limbo?

All that practitioners can do is to make sure they stay in contact with the officer with responsibility for the investigation and ensure that he or she is acting as expeditiously as possible. In circumstances where police are taking a long time to investigate crimes which are not of a serious nature then representations ought to be made about the disproportionate effect on that person’s life, particularly when dealing with youths or other vulnerable people.

In corporate investigations of complexity, one should advise one’s client of the likely timescales involved particularly when the investigators are from agencies not specifically designed to handle complex investigations with large quantities of material.

The full version of this article was first published on Lexis Library and Lexis® PSL on 16 July 2019 and is reproduced with permission and thanks.