The recent police investigation into allegations involving Freddie Starr have shone a spotlight onto the length of time that a suspect can be subject to police bail. It appeared to come as a surprise to journalists and commentators, and presumably therefore the public, that someone arrested and released by police on bail for further investigation can remain in limbo for many months or even years, but it is no surprise to criminal practitioners. Sadly, it has become increasingly normal for lengthy periods of time on bail, often subject to onerous bail conditions.

• Sketch by Isobel Williams. See Isobel’s blog Drawing from an uncomfortable position

There is little or no provision for lawyers to make effective representations regarding police bail, and even less for unrepresented suspects. The problem has become worse both by the introduction of ‘fixed fees’ (under legal aid) for police station advice, which means lawyers are less likely to be at the station in person for bail decisions, often made some considerable time after interview. It can also be seen as part of the trend towards ‘designing out the solicitors’ (as persuasively argued by Prof Ed Cape on the Justice Gap).

Police powers of investigation and detention are set out in the Police and Criminal Evidence Act 1984 (PACE) and the Codes of Conduct. There are protections for suspects in the amount of time a suspect can be detained without charge (typically 24 hours, or longer for serious offences -see PACE Code C para 15 for limits on detention).

Where the police are not able to charge within that period, the suspect can be ‘bailed to return’ and released on bail with a specified date and time to return to the police station (for re-interview, ID procedures or charge) at which point the PACE ‘clock’ resumes.

Critically, unlike detention, there is no statutory time limit on how long the period on bail can be. Further, there is no limit on how many times the decision to bail or ‘re-bail’ can be made. During the initial period of detention, there are constant references to time limits. Once the first bail decision is made the ‘custody clock’ stops ticking.

Under suspicion
The law governing pre-charge police bail is set out in PACE s37, typically for cases where there is as yet insufficient evidence to charge with an offence those suspects whom it is necessary to continue to investigate without their having to be held in custody (s 37(2) PACE);

As we saw in Freddie Starr’s investigation (relating to alleged historic sex offences), a period on bail for 19 months can take a heavy toll. The psychological pressure of remaining ‘under suspicion’, and subject to conditions, are immense.

Neil Wallis (former editor News of the World) has publicly spoken of losing his job and the pressure on him during the 20 months he spent on bail before hearing confirmation there would be no further action. His case is far from unique. According to the Press Gazette, there are at least 12 journalists arrested as part of Operation Weeting who have yet to find out whether they will be charged after more than a year on police bail.

These delays are perfectly lawful but outrageous. Citing the mantra that ‘Justice delayed is justice denied’, solicitor Phil Smith has called for a maximum period for police bail of six months.

Misuse of police bail
There is a growing sense that police bail, combining conditions, are being used as a form of control particularly in public protest cases. This can be post charge (as we saw in the recent Sussex ‘fracking’ cases, where protestors including Caroline Lucas MP were subject to prohibitive and restrictive conditions before being acquitted).

The imposition of pre-charge police bail conditions can be equally onerous, but as seen above with no time limit. A package of conditions including association with others or exclusion from areas can be more restrictive than an ASBO, yet imposed without conviction, application or opportunity to challenge.

One example I dealt with arose in 2012. The opening night of the London Olympics coincided with the monthly gathering of cyclists in the Capital known as Critical Mass. Feelings were running high, as cycles had been banned from the Olympic Route Network, and the Met tried to ban the critical mass participants from crossing North of the River Thames, eventually arresting no less than 172 cyclists. Each of these cyclists were held (often almost to the full 24 hour limit) before being bailed with a standard package of highly restrictive conditions which restricted their movement, banned them from areas of London and from attending the vicinity of any Olympic venues even where they had tickets for events.

I represented several of those arrested, and was able to have the conditions removed by appearing pro bono and making an application to the Magistrates Court, butmany who were unrepresented had the conditions remaining until the conclusion of the case (in most cases that being the police taking no further action)

Conditions imposed by an officer may be varied by the Magistrates’ court on application by the suspect (section 47(1E) PACE). The magistrates can confirm the same conditions, impose different conditions, or direct that bail shall be unconditional. It continues to be police bail. See Criminal Procedure Rules, Part 19, bail in the magistrates’ court and the Crown Court for further information.

There is also provision for returning to the Police Station and seeking removal or variation of conditions, and that can be a more expeditious route for non-contentious applications (eg change of address) but otherwise unlikely to succeed if effectively asking one Custody Sergeant to over-rule another.

The police have a power of arrest where conditions imposed on pre-charge bail have been breached (see section 46A PACE 1984 as inserted by CJPOA 1994 Section 29 (2)). Where a person has been re-arrested, section 37 C (2) (b) PACE gives the police the power to release (again) “without charge, either on bail or without bail”.

Section 37 C (4) states explicitly that if a person is released on bail under section 37 C (2)(b), then that person shall be subject to whatever conditions applied before the ‘re-arrest’.

Conclusion
Police powers are limited and codified by PACE, but there are insufficient checks and balances to prevent abuse of police bail during the investigative stage – i.e., pre charging decision.

There should be limits in place to limit the duration of bail.

Furthermore, unrepresented suspects when conditionally bailed should be given a proper opportunity to challenge any proposed conditions, and provided with a written notice on how to apply to vary or remove conditions.

In the meantime, legal advisers will have to be vigilant (notwithstanding funding restraints) in challenging the practice of lengthy re-bail decisions, and imposition of draconian conditions.