July 21 2022

Bail reforms to prevent suspects being trapped in ‘legal limbo’ have reverse effect

Bail reforms to prevent suspects being trapped in ‘legal limbo’ have reverse effect

A change in the law to prevent suspects being stuck in a ‘legal limbo’ on police bail indefinitely has had the opposite effect. Since April 2017 police forces have faced a 28 day maximum on bail which can only be extended in exceptional circumstances and anyone the police intends to investigate beyond this period can be released, without conditions, in line with a new ‘under investigation’ status.

According to the defence solicitors Hickman & Rose, the law was changed to stop people ‘being kept under a cloud of suspicion for months on end’; however this has not happened. Data obtained by the firm under the freedom of information legislation shows people are now being kept ‘under investigation’ for an average of 49 days longer than they were under the old bail regime.

The average ‘under investigation’ length was 139 days compared to 90 days for the year ending April 2017. Of the ten of a total of 43 police forces which responded in full to FoI requests, suspects were being kept ‘under investigation’ for longer than they used to be kept on bail in seven of those forces. Surrey was the worst offender keeping people ‘under investigation’ three times longer than before. So in 2017/18 its average ‘under investigation’ length was 228 days compared to just 74 days.

The law change was introduced under the Policing and Crime Act 2017 to ‘rebalance the police’s use of bail in the interests of fairness’ – as reported on the Justice Gap here. ‘Pre-charge bail is a useful and necessary tool but in many cases it is being imposed on people for many months, or even years, without any judicial oversight – and that cannot be right,’ the then Home Secretary Amber Rudd said.

In December 2014 the Justice Gap was the signatory to an open letter published in the Daily Telegraphand Guardian calling upon the government to reform police bail (here). It pointed out that more than 70,000 people were ‘languishing on a form of legal limbo’ and more than 5,000 of those had been on police bail for more than six months.

‘Innocent people have been left on pre-charge bail for years before their cases have been dropped or thrown out of court,’ it continued. ‘This is a scandal. Those on it have their careers put on hold. The mental anguish of not knowing what will happen to them is in itself a form of punishment without trial: the weight of suspicion grows heavier with each day. There is no right of appeal.’

Under the new legislation the police could secure an extension beyond the 28 days bail period where it was ‘appropriate and necessary, for example in complex cases’. ‘One extension of up to three months can be authorised by a senior police officer at superintendent level or above,’ the Home Office said.

According to the data, over eight out of 10 of suspects are now released under investigation rather than on police bail. During the financial year 2017/18 each police force released an average of 6,228 ‘under investigation’ and put 1,416 people on bail. There are concerns suspects were taking advantage of the fact that, unlike bail, no conditions can be attached to being released under investigation to offend again.

‘The changes to the police bail regulations were meant to end the injustice of people being kept in legal limbo for months on end as they waited for police to decide what to do. This shows the problem hasn’t gone away. In fact it’s got worse,’ commented Jenny Wiltshire, head of general crime at Hickman & Rose solicitors. ‘Whereas criminal suspects were previously kept waiting for far too long on bail; now they are kept waiting for even longer while “under investigation”. In one way this new ‘under investigation’ status is even worse than bail as police are not obliged provide updates on how the case is progressing nor when it may end.’

‘People, who may be innocent of any crime, are forced to put their whole lives on hold – and live under a cloud of suspicion – as they wait for the police to make up their minds without any idea of when this might happen,’ she said. That this was the likely outcome the new regime was ‘obvious’ when these changes were first mooted. ‘If the government want to achieve speedier resolution of crimes they need to do more than impose unrealistic deadlines on already pressed police forces. They need to provide funding that would enable the police to do their job properly.’

The broadcaster Paul Gambaccini was held on bail for a year under Operation Yewtree. When he appeared before the House of Commons’ justice committee in 2015, he told MPs that he had been a victim of a ‘flypaper’ investigation in which a high profile suspect’s name was hung up in public, serially re-bailed to keep the investigation ‘live’ with the hope that further complainants are drawn out of the wood-work.

The practice was criticised in a report by the former high court judge Sir Richard Henriques. Accoridng to Jenny Wiltshire, there does seem to have been some change in police culture following Henriques in that the police are now more cautious about disclosing information to the press. ‘Following the Cliff Richard judgment, the press also may also be exercising more caution,’ she said; but adds that in her view the Bail Act has not made any difference. ‘The fact of a re-bail is not a matter of public record. The irony is that investigations are taking longer – whether someone is high profile and worried about it leaking into the press, or a professional reliant on an enhanced DBS check – the cloud of suspicion hangs over people for longer and lives are in limbo for a greater period of time.’