Martin Partington: Spotlight on the Justice System

In recent years there was much complaint about the shadow that can be cast over someone’s life when that person has become of interest to the police, but where the police do not have enough evidence to justify charging him or her with the committal of an offence. A number of well-known members of the public were placed on police bail for months, not knowing whether any further steps were going to be taken against them.

When she was Home Secretary, Theresa May decided to amend the law so that, in most cases, a person would normally be subject to ‘pre-charge bail’ for only 28 days (though limited extensions could be granted). There were two main justifications offered for making these changes:

1. When a person has been arrested, the time they can be detained by the police pending a charge is closely regulated. If the evidence is not available to justify a charge, they must be released. Mrs May thought it was right that ‘pre-charge bail’ should also be time limited.
2. Mrs May thought that if a 28 day limit was imposed, this would incentivise the police to get on with their evidence gathering and therefore bring the issue of whether or not to charge a person to a head more quickly.

As an alternative to releasing a person on bail, the 2017 Act gave the police the power to release suspects under investigation (RUI).

It is fair to say that there was considerable professional resistence to these proposals. Individual police forces and the College of Policing were both very concerned that the implications of making these changes had not been fully thought through and were unlikely to have the hoped-for effect. Nonetheless, Part 4 of the Policing and Crime Act 2017 brought these changes into effect.

On 5 November 2019 the government announced that there would be a review of the pre-charge bail legislative framework. The objective of the review was to ensure that there was in place a system that:
• prioritises the safety of victims and witnesses;
• supports the effective management of investigations;
• respects the rights of individuals under investigation, victims and witnesses to timely decisions and updates; and
• supports the timely progression of cases to courts.

Between February and April 2020, the Home Office conducted a public consultation on proposals for amending the legislation.

At around the same time, in late 2019 and early 2020, a joint inspection by HM Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) and HM Crown Prosecution Service Inspectorate (HMCPSI) into how these changes were working in practice was undertaken. The report from the inspection was published in December 2020.

The headline findings of the joint inspection were:

• that suspects are still faced with lengthy delays and that the changes also had unintended consequences for victims, who view them as overwhelmingly negative;
• that not enough thought was given as to how the legislative changes would affect victims;
• that RUI leaves too many victims without the reassurance and protection that bail conditions can provide;
• there was an inconsistent implementation of the changes by forces due to a lack of clear guidance;
• that investigations involving suspects released under investigation tend to take longer and are subject to less scrutiny than ones involving formal bail; and
• that victims and suspects do not understand the legislation and are not being updated about the progress of their case.

For example, in many cases of domestic abuse and stalking, suspects were being released under investigation instead of being formally bailed with conditions. This was very worrying because of the high harm and risk associated with these types of crime. The Inspectorates found through their research that victims of domestic abuse felt less safe since the changes were made.

Reports in the press today (13 January 2021) suggest that the outcome of the Home Office’s review will shortly be published together with details on how the law is to be amended.

Details of the Home Office Consultation are at https://www.gov.uk/government/consultations/police-powers-pre-charge-bail

The Inspectorates reports and accompanying research is found at https://www.justiceinspectorates.gov.uk/hmicfrs/news/news-feed/further-changes-to-bail-legislation-must-consider-victims-needs/

The Press story is in the Times 13 January 2021 at https://www.thetimes.co.uk/article/reforms-to-police-bail-that-left-victims-at-risk-will-be-scrapped-2mdzzmxk5