Corporate Crime analysis: Nick Brett, a partner at Brett Wilson LLP, analyses the changes to pre- charge bail laws made in 2017, which was intended to restrict the use and duration of bail to 28 days, and why they are being reviewed by the Home Office again. Although the system has resulted in fewer arrests, Brett suggests that the changes have not worked well in practice, merely resulting in suspects being under investigation for the same time as they would be on bail for, citing lack of resources as the main reason.

Original news

Home Office to review pre-charge bail laws to ensure its appropriate use.  (LNB News 05/11/2019 70)

The Home Office has revealed that it intends to review pre-charge bail legislation to ensure that it is being used appropriately, especially when conditions are needed to protect victims and witnesses. Pre-charge bail allows police to release suspects, often under specific conditions, while they either continue their investigation or await a charging decision. Under 2017 reforms, pre-charge bail was limited to 28 days. It can only be extended after that if authorised by a senior officer. This reform was introduced to prevent the police from holding suspects in a lengthy state of bail while waiting to be charged.

Briefly, what were the main changes to pre-charge bail made in 2017?

The changes made in 2017 restricted the use of police bail predominantly in terms of duration by making amendments to the Police and Criminal Evidence Act 1984 (PACE 1984) (PACE 1984, s 47ZA et seq). Essentially, the police were restricted to imposing bail for a period of 28 days unless a further extension was authorised by a senior officer and, even then, bail could only be extended to three months from the start date. This change was, in fact, proposed by Theresa May when she was Home Secretary and then implemented by her government. It was made in response to the very justifiable concerns about the number of suspects who were being left on police bail for long periods of time. In more complex fraud cases, for example, it was not unusual for suspects to be placed on bail for years, sometimes with conditions restricting travel and otherwise impinging upon liberty.

What have been the positive improvements to the system?

The new system has resulted in fewer arrests. Unless, the matter is serious or the police wish to exercise powers of search and seizure, suspects tend to be invited to the police station for a voluntary interview under caution. They are not detained at the police station, rendering the whole process is shorter and less intimidating. The suspect is never placed on bail and any subsequent prosecution is instituted by summons or postal requisition. Even when a suspect is arrested, they are usually ‘released under investigation’ as opposed to bail, meaning that there is no restriction on liberty or legal requirement to re-attend the police station. Occasionally, the police do still bail suspects, but usually only in circumstances where they consider it necessary to impose conditions (eg to protect witnesses or to prevent re-offending). For example, suspects in domestic violence cases are often bailed with conditions not to return to the family home or to contact their partner. Thus, a positive improvement has been fewer arrests and less restriction on liberty. Prior to the changes, suspects would have to resort to expensive and time-consuming applications to a magistrate’s court for review of bail conditions, where, for example, they wished to travel abroad and needed the release of a passport where its retention was a condition of bail.

What hasn't it worked well in practice?

The reality is that the changes to bail are simply a sticking plaster to partially disguise the real problem for the police in the investigation of crime—lack of resources. The fundamental reason that suspects were being placed on police bail for long periods of time was that there were insufficient resources to conclude investigations in a timely fashion. I believe the resources made available to the police during the ‘austerity years’ were cut by around 40%. This dramatic cut in police resources has come during a period where the collection of evidence has become more sophisticated, particularly as police and prosecutors now wish to rely on evidence such as media messages and electronic footprints which provide compelling contemporaneous evidence in support of most prosecutions. The difficulty is that such evidence requires professional extraction and presentation, which can often only be undertaken by third party forensic scientists and other experts. So the reality is that where suspects were left on bail for long periods of time, this has simply been replaced by being under investigation for equal periods of time. While it is more palatable from a human rights perspective, it can be no less stressful for the suspect.

Why is the government now reviewing the system of pre-charge bail again?

The government will say they are doing so because the current system is not working and they want to be tough on crime. The current Home Secretary has professed her desire to be tougher on those responsible for the commission of criminal offences. Critics of the government would say that a review of the current bail regime is simply a means of distracting from the real issue which is the chronic lack of resources given to the police and other prosecuting agents in the criminal justice system.

What changes would you like to see made?

I am not sure there needs to be any change in the law, but rather an improvement in the way it is applied. The chief concern for the police, and those interested in the identification and punishment of crime, is lack of resources. This has impacted particularly disproportionately on the investigation and prosecution of fraud and it was such investigations which triggered the requirement for change in the first place. This is one of the real hidden repercussions of the austerity era. The police simply do not have the resources to investigate fraud. This has led to a growth in private prosecutions and resources which could be directed to the police are being paid into the private sector through costs orders made to private prosecutors. With this in mind, the latest review of police bail may be seen by some as another red herring.

Nick Brett was interviewed by Devon Marshall.

This article was originally published on LexisPSL and reproduced with thanks.