Commissioner’s Response to the Home Office Consultation – Pre-Charge Bail
20th April 2015
Vera Baird QC response to the Government’s consultation about Pre-Charge Bail.
Q1: To what extent do you agree or disagree that the Police and Criminal Evidence Act should be amended to enable the police to release someone pending further investigation without bail in circumstances where bail is not considered to be necessary?
Strongly agree/Agree/Neither agree or disagree/Disagree/Strongly disagree.
Strongly agree.
The Police and Criminal Evidence Act 1984 gave police the power to bail a person who has been arrested while they investigate an allegation. There are an estimated 70,000 people on police bail at this time and this governing Act could not have predicted such high numbers.
In Northumbria Officers are making use of requesting that people attend Police Stations voluntarily. If police do not have grounds to detain a person and risks of harm and breach of trust is low this method has a less debilitating impact on the person and less strain on policing budgets as it reduces the demand on custody suites.
Q2: To what extent do you agree or disagree that it would be appropriate to change the definition of ‘new evidence’ (on the basis of which a fresh arrest could be made) to include material that was in the police’s possession but which it was not reasonable to have expected them to analyse while the suspect was previously in detention or on bail?
Strongly agree/Agree/Neither agree or disagree/Disagree/Strongly disagree.
Strongly agree
Amending the definition of section 34(5) to allow officers to analyse evidence collected, that was available at the time of arrest, and re-detain without the individual being subject to bail conditions would assist with reducing the large number of people with unnecessary restricted liberty due to dated bail legislation.
Q3: Do you think there should be an absolute maximum period of pre-charge bail?
Yes/No/Don’t Know
Yes
The College of Policing carried out a consultation and found that when people are bailed pre-charge, the effect on the police is that the investigation loses momentum. Officers know that they have the option of repeatedly bailing people and with no pressure of time other cases take priority. In the aftermath of this report, one police force challenged itself to cut bail times and easily succeeded. In light of those findings, from the Police themselves, there really can be no argument against a time limit on pre-charge bail.
Q4: If yes how long should that period be?
28 days/3 months/6 months/12 months/No maximum/Other
3 Months
A maximum of 3 months would give the police reasonable time to investigate while not imposing greatly on personal liberty. The level of injustice currently being suffered by approximately 70000 people, many of which will never be charged with an offence, and are spending their lives on restrictive bail requires reform. In Northumbria Police area, we are making more use of asking people to attend the Police station voluntarily. If there has to be an arrest for any reason people can be released without bail and the investigation can continue.
Q5: What do you think the benefits of introducing statutory limits for pre-change bail durations would be?
Please specify/qualify (if possible)
Introducing statutory limits for pre-charge bail duration would benefit Policing as it would work to reduce the demands on custody suites and resources. It would allow officers to carry on with their investigations and also ensure that the investigation does not lose momentum. If there has to be an arrest for any reason people can be released without bail and the investigation can continue. It is only if those 2 avenues are considered and reasonably rejected that it can possibly be justifiable to arrest and put a person onto pre-charge bail. Applying a consistent approach to pre-charge bail will prevent misinterpretation of policy and create a system that is clear and concise. In adopting this policy there are also significant benefits to the individual. Pre-charge bail can be very restrictive to individuals, for example;- the police can add curfews, conditions of residency and forbidding associating with identified known associates, impacting significantly on family life and employment. A limit on pre-charge bail duration would allow the individual to make plans for the future, regardless of the investigation outcome. The benefits to the victim will also be significant. The alleged injured party will have latest time scales to work towards when awaiting an outcome for the alleged perpetrator to be charged.
Q6: Should there be different periods for different types of cases? If yes, which?
All cases where there are exceptional reasons/Only cases involving international inquiries/Fraud/Tax Evasion/Multiple suspects/Historic cases/Other types of cases (please specify)
No
3 months would give the police reasonable time to investigate while not imposing greatly on personal liberty. Some campaigners want to see a limit of 28 days, but as the Police Crime Commissioner I would not want to see officers spending time away from inquiries and going to court to justify extending bail when, for instance, it is frequently the case that forensic science reports take a number of weeks.
Q7: To what extent do you agree or disagree that it should be possible to extend the period of pre-charge bail?
Strongly agree/Agree/Neither agree or disagree/Disagree/Strongly disagree.
Disagree
Campaigners have requested a 28 day bail period, however, as previously noted allowing a 12 week pre-charge bail period will create consistency regardless of offence and ensure that sufficient time is allowed for officers to complete their investigations without attending court and spending lengthy periods away from vital policing.
Q8: If pre-charge bail could be extended, who should authorise that?
Senior police officer/Magistrate/Judge/Home Secretary/Other (please state)
Magistrate
If it is deemed necessary to extend a bail period making an application to the Magistrates Court will provide an independent and non-biases judgement on the case. Magistrates are an effective part of the judiciary when impartial authority is required. Using this body to authorise the extension, as opposed to more senior ranking Police Officers or Judges in Crown Courts would also be a more cost effective method. Senior ranking Officers would not be provided with additional tasks on their daily duties and Judges would not be required to sit on cases listed to court that could be authorised by a body that is effectively free to the judicial budget!
Q9: To what extent do you agree or disagree that the criteria set out about for the authorising of a bail extension are the right ones?
Strongly agree/Agree/Neither agree or disagree/Disagree/Strongly disagree.
Agree
Considering the responses provided above the need for pre-charge bail extensions quantity should be reduced if the absolute limit time is set correctly. Providing officers a realistic time frame to complete investigations and scrutinise evidence gathered this will reduce the applications necessary. Should an application be made to extend pre-charge bail in extenuating circumstances the criteria set in the consultation paper provides the judiciary clear guidance on the circumstances that should inform their decision.
Q10: Are there other criteria that should be added or substituted?
If yes please specify
No
The criteria set out in the consultation provides clear guidance and encompasses the impact granting or rejecting the application will have on the accused and the victim. It allows the authorising body to consider the effectiveness of the investigating officer and consideration is given to the timeliness of the investigation.
Q11: To what extent do you agree or disagree that the police should seek to agree memoranda of understanding for the provision of evidence from other police bodies rather than seeking production orders from the Crown Court.
Strongly agree that memoranda should be agreed/Agree that memoranda should be agreed/Don’t know/Agree that police should seek production orders/Strongly agree that the police should seek production orders.
Strongly agree
The purpose of placing a time limit on the length of pre-charge bail is to provide a consistent approach to pre-charge bail in Police Forces across the country. The gathering of evidence often requires multi-disciplinary evidence collation. To ensure that other disciplines are aware of implications that a delay in the evidence collation can cause Police seeking to agree memoranda understanding can only work to strengthen the efficiency and effectiveness of a time bound pre-charge bail process.
Q12: To what extent do you agree or disagree that individuals who are the subject of pre-charge bail should be able to challenge the duration as well as the conditions in the courts?
Strongly agree/Agree/Neither agree or disagree/Disagree/Strongly disagree.
Strongly agree
Pre-charge bail is a restriction of a person’s liberty because there is insufficient evidence to make a presentation to the CPS for permission to charge. Implementing a 12 week pre-charge bail period should provide time for the investigating office to gather the required evidence. Should this period require extending the individuals should have the right to an explanation why the investigation has not produced the necessary evidence and appeal the requests for the extended pre-charge bail.
The objectives of pre-charge bail must be clear and appropriate. Should further restriction of liberty be required (as stated in the consultation paper) there must be reasonable grounds, a need for further investigation and appropriate conditions imposed. Pre-charge bail must not be an attempt by officers to impose a quasi-prison sentence. Restrictions to liberty through imposing stringent conditions can be counter-productive and result in unnecessary breaches of conditions. An example of this may be preventing a person on pre-charge bail for shop theft entering a City Centre exclusively. If the individual has appointments with substance misuse services, GP’s or housing providers based within the City they are then deprived of support to help them desist from offending, the individual should then have the right to challenge the officers decision.
Q13: Do you think there should be statutory guidance to custody officers and magistrates as to the appropriateness of particular bail conditions? If yes who should provide it?
College of policing/Judicial College/Both Colleges, jointly/Other
Both colleges, jointly.
Statutory guidance on the appropriateness of bail conditions needs to be understood by both arms of the criminal justice system. Providing statutory guidance that adopts a multi-disciplinary approach will ensure the interpretation of the conditions is understood by both custody officers and magistrates.
Q14: To what extent do you agree or disagree that the extension of pre-charge bail should only be available in certain types of case, such as fraud or tax evasion, or those involving international inquiries, or should it be available in all cases where there are exceptional reasons for an investigation?
All cases where there are exceptional reasons/Only cases involving international inquiries/fraud/tac evasion/multiple suspects/historic cases/other types of cases (please specify)
All cases where there are exceptional reasons.
In some circumstances it may not be possible to conclude an investigation in a 12 week time frame. The examples in the consultation name fraud, tax evasion, multiple suspects and historic cases, in such cases other specialist agencies may be assisting with the collation of evidence. I have stated that a memoranda of understanding is required, however, should the officer in charge of the case require an extension due to sever complexity and the need for specialist agencies to provide accurate evidence an application to extend the pre-charge bail period should be made to Magistrates. The pre-charge bail process must be linear and the same process for all offences, unless it is later identified that the investigations require an extended period of time. The process followed should be as outlined.
Q15: To what extent do you agree or disagree that there are certain types or characteristics of cases where the 28 day/3 month limit (depending on the model adopted) should not apply?
Strongly agree/Agree/Neither agree or disagree/Disagree/Strongly disagree.
Strongly disagree
In all cases officers should seek to conclude their investigations within a 3 months limit. In extenuating circumstances, outlined above, an application should be made to the courts to extend the period. An additional clause to the statue is not required as this may be open to misinterpretation and misuse.
Q16: What alternative arrangements do you think should apply in those types or characteristics of cases?
Review process starts later/Reviews less frequently/Both/Same review process as other cases
Same review process as other cases
The process should be systematic. If an individual is arrested for an offence and pre-charge bail is deemed necessary by the officer in charge of the case the investigation period of 12 weeks should be a maximum length of time set to complete. If the officer is not in a position to present the gathered evidence to the CPS but believes an offence has occurred and is of the opinion that the individual on pre-charge bail is the perpetrator then he/she should make an application to the courts to have this period extended clearly outlining the reasons for the extension and providing a brief explanation as to why the additional period is required.
Q17: To what extent do you agree or disagree that, where the reviewing officer or court agrees with the investigating officer that it could harm the interest of justice to disclose sensitive details of the investigation to the suspect, such as where it might enable the suspect to dispose of or tamper with evidence, it should be possible to withhold the details from the suspect and their legal representatives.
Strongly agree/Agree/Neither agree or disagree/Disagree/Strongly disagree.
Agree
If the officer in charge of the case can evidence that disclosing certain information will have a significant risk on any parties involved in the offence then as a safeguarding measure the information should be withheld from all parties linked to the defence.
Q18: If sensitive details were to be withheld from a suspect so as to not jeopardise an investigation, what procedural safeguards should be incorporated to ensure the system operates fairly?
Please specify
Safeguarding sensitive information from individuals and their legal representation, when applying for the extension of pre-charge bail will require certain details to be considered by magistrates in retiring rooms with a Clerk of the court present. As I have proposed that both the College of Policing and the Judicial Collage will provide the statutory guidance to Magistrates the procedural safeguards will be a guidance agreed by both bodies and therefore a statute that can be easily adhered to.
Q19: To what extent do you agree or disagree that the Crown Court should take responsibility for certain types of cases at an earlier point?
Strongly agree/Agree/Neither agree or disagree/Disagree/Strongly disagree.
Agree
There are some offences that can only be dealt with by jurisdiction of the Crown. I believe that these cases should be directed straight to this arm of the Judiciary. The strength of a case and the engagement of key witnesses is more pronounced when the offence is recent. The more historic the case is the more diluted the evidence may become. Crown Court accepting jurisdiction of appropriate cases at the point of charge will allow officers to present fresh evidence and engage key witnesses more swiftly! An example of this can be derived from the frequency of rape cases being withdrawn and evidence becoming misconstrued due to the time delay between the offence occurring and the case being heard before a jury.
Q20: If the Crown Court were to take responsibility for certain types of cases at an earlier point, when and what types or characteristics of cases should these arrangements apply to?
Please specify
Indictable offences only.
Q21: To what extent do you agree or disagree that the introduction of these changes would be likely to influence the speed with which investigations are dealt with?
Strongly agree/Agree/Neither agree or disagree/Disagree/Strongly disagree.
Agree
Officers in Northumbria are committed to completing investigations in a timely manner. Providing statutory time limits will not permit officers to delay cases and prioritise other matters! Cases will be dealt with and presented to the CPS and produced before the relevant judiciary within a timescale that is agreed by statute.
Adopting the new process has the potential to get the matter before the appropriate sentence more swiftly. Implementing this into the new legislation will reduce the number of individuals presented before magistrates and allow the Crown to accept ownership of cases at charge stage of the case. For certain individual’s this may prompt and earlier admission of guilt.
Q22: For your organisation, what would the resource implications of each model set out above?
Please specify
As PCC it is appropriate for the operational resource implications will be considered by Northumbria Police who will include this in their response.
23: Do you have a preference between the two models? If you do, why?
Model 1/Model 2
Model 1
Model 1 is my preferred model as it requires external jurisdiction to authorize the extension of the bail period.
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