This short piece is written on the day that a typical mainstream media crime story broke. Was it about the near collapse of criminal legal aid? No.
Was it about yet another disclosure scandal? No.
Was it anything likely to show the criminal justice system in a positive light? In media? That would be news. No
It was the impact of relatively recent changes to bail. It highlighting the risk (apparent but not illustrated by examples) to the public by police failing to impose suitable bail conditions on those under investigation for serious sexual or violent offences. ‘Thousands of violent crime suspects released without conditions’ http://www.bbc.co.uk/news/uk-43589395
This is called ‘release under Investigation’ (not under ignominy as in my title- as that is just a potential bye product)
Manna from heaven for Government under attack from lawyers protesting vigorously about unsustainable cuts to legal aid. How distracting. I wonder if there is any connection.
In response to this I would like to act as something of a counterpoint to the BBC story. A bit of social media Ying to mainstream Yang.
Apart from the welcome distraction for the Government I suspect something else is going on in the background here. I have grave doubts as to the efficacy of the bail conditions that the police are so nostalgic for. They are often wholly disproportionate in their terms and quite ineffective. But I accept no contact conditions of bail might still be appropriate to reassure victims of violent crime or where witness may be at risk. But for the most part bail conditions are almost wholly unnecessary and onerous without serving much purpose. They were often imposed and then suddenly there were not, and in most cases for most types of other crime it really made no difference.
Indeed there was a major scandal that led to the change. There were horrendous stories about people being on bail for months and years. I introduced, as chair of the CLSA conference in 2016 Paul Gambaccini who spoke with real passion and eloquence about the nightmare of being bailed for a year with his life on hold until told no further action would be taken. The reality is that all solicitors knew of cases like that and the much argued for 28 day bail limit came supposedly to prevent that injustice. The 28-day limit took effect through the Policing and Crime Act 2017.
The Home office said:
‘The change “brings an end to the injustice of people being left to languish on very lengthy periods of pre-charge bail”.’
And In Hansard on the 7th February 2018 the Minister when laying the measure before the house said
‘chief police officers are being encouraged to examine the way that their forces handle cases of those released under investigation—that is, without bail; to ensure that the reforms to pre-charge bail do not inadvertently lead to longer investigations.
You will be as shocked, positively shocked as me to see this uncharacteristic flabby thinking from the MOJ. This providing such a wholly inadequate safeguard as a pious hope as to the efficacy of impact of senior officers ‘examinations’ on the time taken by subordinates to investigate those periods on RUI in case of they are not being completed in good time
Who needs to legislate or prescribe for time limits when the good old chief police officers carry out ‘examinations’ . There’s a copper bottomed guarantee for you!
Is indefinite investigation time the price paid to buy off the police for the 28 day limit on bail periods. Has it all been smoke and mirrors to ensure police are compensated for inadequate resources but at public and Solicitors expense.
It is a shame that the BBC instead of opting for the Daily Mail approach of going for the scary crime headline with their obtained FOI stats did not do us all a public service by checking whether Ministers & Chief officers have delivered on assurances of no longer delay. The police chiefs and the MOJ seem to have failed.
Because what actually happened? Did this measure improve the plight of those (let us remember) innocent people under suspicion. Not at all. Why? Because the police circumvented the new bail act by simply releasing people subject to no bail conditions at all. It is the above referred to process known as ‘release under investigation’ and it quite invidious. It is no better and probably worse in impact and stress than the older system pre 2017. That is because to avoid the 28 day bail period limit, which the police loathed, they have simply in most cases obviated the need for bail at all by not setting any bail date for the potential conclusion of the investigation.
This is, and I do not pull my punches, a disgrace. Parliament made a serious error by introducing in the 2017 Act what at face value sounds like an almost benign provision which was a ‘ a presumption in favour of releasing a suspect without bail’. No onerous bail conditions.
That sounds good. Except it isn’t. Because apart from showing how irrelevant and unnecessary most bail conditions were, it took a suspect say like another Paul Gambaccini or less publicly celebrated person back to square one in terms of time in a legal limbo. Because you are kept for potential months with your case being resolved whilst your case is apparently being investigated. I say ‘apparently’ because when you phone up to enquire you hear nothing or no one is available or calls you back so for all you and your client knows nothing is being done for months. Sometimes that is due to interrogation of IT or other forensic investigations but not always. Then if charged, with the sparse disclosure served (if lucky) you wonder what had they been doing for all those months.
Now of course that is an irritation for lawyers but for clients, especially the young it is deeply upsetting to be cast into this legal limbo. I had a young client whose boyfriend sent a harassing phone message using her phone. He admitted it. She was innocent but was ‘under investigation’ for 5 months. A couple of phone calls and a 30 minute interview with the boyfriend would have resolved this ‘investigation. Five months!
A police watchdog previously warned this could endanger vulnerable victims. ‘
The police hated the 28 day limit so they let everyone (almost) just leave on a ‘we’ll be in touch sometime ‘release under investigation’ basis. No time limit. You could be kept hanging around for years potentially. Now we have this ‘scandal’ purporting to be about violent or sex offenders whom the police arguably could have kept on strict bail conditions for 28 days and then applied for extensions if justified.
Has RUI been manipulated and manoeuvred to achieve this end? It seems very odd that the culture should change from excessive use of bail condition pre the 28 day limit and almost reckless abandonment of bail conditions after a ferocious fight by the police to avoid that limit. Perhaps you may think I am being over cynical.
But the police in my view want bail time limits scrapped so the police can go back to the ‘good old days’ of keeping people under mere suspicion like poor Mr Gambaccini in life limbo for months and years without annoying time limits.
But we must protect victims at risk from violent or sexual offenders and it is ludicrous that we have abandoned bail conditions￼ for that type of offender. It is nonsense that they should be RUI without conditions. but it is also nonsense that everyone else should be made subject to onerous bail conditions or subject to indefinite RUI limbo. ￼￼￼ The present system can be amended in a sensible manner￼
I have 2 proposals for change.
Let’s do away with bail conditions and its 28 day limit, save for a few serious cases to protect the public, but instead carry on releasing people under investigation with a time limit on that.
This to avoid conditions, to act as a spur for police activity and to prevent suspected people having their lives and those of their family blighted in this way so inimical to human rights.
That would avoid cumbersome bail conditions save for those few types of case where needed and would bring back sanity and control of these police station cases ultimately to the courts.
There could be an interim stage of review within bail or RUI process involving a serious exercise with CPS Police AND also the defence having some say and input at least to the degree consisitent with the integrity of the investigation simply so that progress or non progress can be identified.
Think extension of detention hearings where defence can question police on steps taken.
A two stage process. One stage out of court perhaps by video link then the next if neccessary in court for the next application for time. Some modest adjustment to funding would be needed if the suspect is legally represented. But some outside input is needed to prevent the excessive delay we now are seeing.
This legal limbo is appalling and must be ended.
Friday, 30 March 2018