Three years ago I was a lawyer in his first few years of practice in a family firm started by my mother Mary Monson decades before. She had been a member of the law centre movement in the 1970s and was regarded as at the anti-establishment end of the law in the 1980s, when it was a pretty exciting and dangerous time to be there. But by the time I joined the firm, we were concentrating more on surviving legal aid cuts. It would have taken a lot for us to pay any attention to what was being said outside our own clients’ cases.
- Joseph Kotrie-Monson’s firm represented Paul Hookway in the case that brought police bail into the spotlight
Then came the case of Paul Hookway. Mr Hookway was a client accused of a murder in which the main evidence was his presence at the scene, and the absence of anyone else. Not enough to charge him, certainly not enough for a jury to convict. He was arrested, interviewed, bailed for six months, and the police detained him for questioning again with no new evidence.
The Magistrates’ Court and the High Court said this was not lawful. The police have a maximum of four days to detain someone in a police station. They can’t come back and do it again without new evidence. The police at both court hearings said that they thought they could start and stop the four day clock as many times as they wanted before the limit was reached. This of course meant that the police could re-arrest and re-detain for an hour each time over an unlimited number of years on 96 occasions if they wanted to. This was clearly not what the Police and Criminal Evidence Act had in mind.
All hell broke loose. The government all of a sudden woke up to the fact that they had 85,000 people on bail in the UK in June 2011 and that they hadn’t checked if they were waiting for new evidence before the second interview, which meant they could legally detain and interview them again, or if they didn’t.
The home secretary Theresa May, the learned constitutional expert Professor Michael Zander QC and senior police officers immediately started setting the ground for emergency legislation to ‘close the loophole’ which ‘ignored 25 years of police practice’, and prevent murderers and rapists from running the streets.
Bail & see
But of course, what was really happening, and what nobody was talking about, was that the reason these people were all on bail and not charged is that a culture of ‘bail and see’ had begun in silence at the police.
Suspects were being arrested, and bail was being used as a way of controlling them until a decision was made on their fate, months or sometimes years later, at which point they would be exonerated or proceedings in court would commence. That’s right, some people would and still do wait three or four years to find out that their case in court is only just beginning, and that can last a year or two more in complex cases.
So for the first time in 20 years, we went out to the press and told the story that sadly even Liberty, when I asked them to do it instead, had taken the view wasn’t a story worth telling, that this rush legislation was actually about legitimising police inefficiency at the expense of the rights of the citizen to not be dangled on the end of a policeman’s line for years without trial. After a war of words in which Theresa May publicly told me, the Law Society, and every QC I could rally to the cause that we were naïve and didn’t understand the reality of policing, the legislation was passed, and the issue of extended bail periods was put to bed with a vague promise of a government review into it.
And now, three years later we appear finally to have some type of announcement on a reform of the law on bail, from the same people who expanded its remit over the lives of citizens. Teresa May will address the College of Policing today and tell them that ‘we must also look at statutory time limits on the use of pre-charge bail to prevent people spending months or even years on bail only for no charges to be brought’. Which funnily enough are almost the exact words I used and she reckoned I was clueless about modern policing in saying. Remarkable.
The question is, what does a statutory limit mean? I am sure that Theresa May will not mean, as she should mean, an absolute stop. Fraud cases and serious cases will always be provided for, a catchall which means they can be bailed and investigated for years as they are. No doubt some get-out clause involving ‘complexity of the investigation’ and ‘due expediency’ by police will legitimise exactly what is going on now. And why do I say this with such conviction?
Because the cause of long bail periods being an issue has not been removed but exacerbated – police funding. The police are completely under-resourced in dealing with any cases involving technology or financial issues. This includes fraud, sexual offences, and anything where there are complex forensics. Only murder cases are now expedited, and the rest are all on a very inefficient and underfunded backburner. The Home Secretary can’t improve this while also, as her Government has done, slashing the policing budget.
So why is she making this announcement? The two clues lie in the examples she is using to sell this change and the timing. Whereas when she was trying to expand police bail powers she used the examples of rapists and murderers; she is trying to curb it by citing examples of more heroic bail victims, celebrities. The celebrities are the ones who have spent six months on bail only to have their cases dropped. The second clue is the timing – just before an election. We are being fed populist rhetoric over pitied celebrities to make this sound attractive pre-election. This is so far removed from the real concerns of the person whose son is wrongly accused of rape, or the bank employee who spends three years on bail because of the actions of a corrupt manager so as to be insulting.
Sadly, grandstanding on bail rights from a government which has a track record of legitimising bail period abuses with scare tactic emergency legislation doesn’t sound too convincing.
If this new legislation comes, it will of course come with no new funding for police to actually do their job more efficiently, and the get out clauses will be as wide as it will be necessary for everything to proceed as slowly as before.