November 22 2023

Why the government’s bail reform will make little difference

Why the government’s bail reform will make little difference


police lanternSteve Hayes, former owner of Wasps Rugby Club and Wycombe Wanderers FC was arrested in 2012 after hiring a private detective to watch a transfer target he suspected of being a drinker. The police did not have enough evidence to charge him so they released him on bail. Nearly four years later, having been re-bailed at least nine times, he was finally informed in a brief letter sent to his solicitor by the Crown Prosecution Service that they did not have enough evidence to charge him with any offence.

Tom Crone, former legal manager of News International, was bailed without charge for over two years following his arrest in connection with the telephone hacking investigation, before being informed he would not be prosecuted. Paul Gambaccini was on police bail for almost a year, during which time he was re-bailed six times, before being told that the investigation was being dropped. Hayes is reported as saying that it led to the break-up of his relationship of 22 years, the rubbishing of his reputation, and the loss of £10 million in business. Gambaccini described his experience as leaving him feeling that he was the victim of a witch hunt.

These people hit the headlines because they are famous or work in the media, but the story is much the same for many people who remain anonymous. Although the Home Office does not routinely collect data on police bail, prompted by a Freedom of Information request by BBC Radio 5 Live in 2013, it finally admitted that annually over 400,000 people are placed on police bail without having been charged with an offence, and that about 26,000 of them are on bail for more than six months. Many of them are subjected to conditions, such as residence at a particular address, curfew, or no travel overseas, but no official information is available on how often they are used – or whether they are effective.

The police have extensive powers to release on bail people they arrest without charging them with any offence, and to impose conditions. At present, there is no time limit on the length of time a person can be placed on bail, and the little evidence that is available suggests that about half of them are never charged. A person released on bail can apply to a magistrates’ court to vary or remove conditions, but the courts have no power to order the police to unconditionally release them. A person released on bail can be arrested if they fail to turn up at the police station when required, or if they breach any of the conditions imposed, and failure to attend the police station is a criminal offence even if the person is never charged with the offence for which they were originally arrested. And the evidence suggests that these powers are used disproportionally in respect of black and minority ethnic people, and those who are vulnerable.

A due process fig leaf
In the Policing and Crime Bill, currently being discussed in Parliament, the government proposes to regulate police bail more closely. Where investigations cannot be completed whilst a person is in police detention, the presumption will be that they must be released unconditionally, rather than on bail, and that the police can only bail them if it is necessary and proportionate.

Release on bail up to 28 days will be a decision for the custody officer (a police sergeant), but this can be extended for up to three months by a police superintendent. Thereafter, extension of bail will be for a magistrates’ court to decide, although there is no limit to the number of times bail can be renewed. This scheme is varied if a case is exceptionally complex – the Director of the Serious Fraud Office or a senior Crown prosecutor can authorise release on bail for up to six month, after which a magistrates’ court must make the decision. Magistrates’ courts will normally make a decision based only on written submissions, and an oral hearing at which the suspect and their lawyer can be present will only be held if the magistrates decide that this is in the interests of justice or if the application is to extend bail beyond 12 months.

Whilst police bail without charge has existed for a long time, the power to impose conditions was introduced little more than a decade ago, and action to regulate the use of bail by the police is long overdue. However, whilst the proposal to introduce a presumption of unconditional release is welcome, the new provisions will have little effect in practice. Guidance from the College of Policing already provides that bail beyond 28 days should be reviewed by a senior officer. Putting this on a statutory footing will make no difference – the decision will still be made by a police officer. Investigations such as those in which Hayes, Crone and Gambaccini were involved are likely to be treated as exceptionally complex, meaning that under the new law they could still be placed on police bail for six months without a court being involved.

Giving magistrates the responsibility for extending bail beyond three months (or six months in the case of exceptionally complex investigations), which sounds sensible, will also make little difference. The courts are always reluctant to intervene in what they regard as police operational decisions: as the High Court has stated, ‘it is not for a judge to second guess the operational decisions of experienced police officers’ (Hanningfield v Chief Constable of Essex Police [2013] EWHC 243).

Most decisions on extending police bail will be made without the suspect or their lawyer being present, but even if there is an oral hearing, the police will be able to withhold sensitive information and it will be difficult, if not impossible, for the suspect to question the police case for bail. If the police argue, on the basis of information that they are unwilling to divulge, that if released unconditionally the suspect will flee or commit an offence, how will the suspect be able to counter that? Involving the courts in bail decisions is little more than a due process fig leaf.

In a pamphlet published by the Howard League for Penal Reform earlier this year, What if police bail was abolished? (PDF), I argued that the power to impose conditions should be abolished and that police bail without charge should be subject to an absolute limit of 14 days. Bail conditions are unenforceable (if a person breaches conditions, they will have to be bailed again if the police do not have sufficient evidence to charge) and in fact are more likely to have an adverse impact on the law-abiding as opposed to those who feel they have little to lose. The Northern Ireland Law Commission, in a report published in 2012, recognised this and recommended that the power be abolished.

The government did not even consider this for England and Wales. Giving the police, and then the courts, the power to extend bail – without any limit – will not prevent thousands of people from being placed on police bail only to be told that they will not be prosecuted. Preventing the police from dangling suspects on a thread for months, and sometimes years, will not mean that they cannot carry on investigating. But it will prevent a gross abuse of power, and may even encourage the police to carry out their investigations more efficiently.