Posts Tagged ‘bail’
The Queen’s speech 2021: proposals affecting the English Legal System
In this note I set out a brief summary of those Bills which are most likely to impact upon the English Legal System and the topics I consider in my book on the subject.
Top of the list is the Police, Crime, Sentencing and Courts Bill. This Bill is not new, but is one being carried over from the last Parliament.
It has already attracted a great deal of public attention with widespread protests against its proposals for changing the law on the powers of the police to control demonstrations.
But it is a Bill which goes much wider than that and contains a range of important proposals which will affect reforms to the ways of working in courts and tribunals, on bail and on sentencing.
A Draft Victims Bill will also be published containing proposals to:
● Put into law the rights that were set out in the recent Victims’ Code which are designed to improve victims of crime experience of the criminal justice systeem; and
● Set expectations for the standard and availability of victim support for victims of domestic abuse and sexual violence.
Being a draft Bill, these ideas will be the subject of consultation before a definitive Bill is presented to Parliament. These measures are unlikely to become law for a couple of years.
A Judicial Review Bill is proposed. The issue of judicial review has been on the Government’s agenda for a long time. It was the subject of a review by a team led by Lord Faulks which suggested the possibility of some detailed changes to the current law (in particularly creating a power for the courts to suspend a quashing order) but which thought the main principles of the law should remain unchanged. The Government has launched a consultation on whether further questions need to be addressed, in particular whether and if so how the courts could be prevented from reviewing particular categories of issue. The outcome of this consultation is not yet available. I assume that the Bill which has been announced will not be published until the current consultation is completed.
A Dissolution and Calling of Parliament Bill is designed to repeal the Fixed-Terms Parliaments Act 2011. In addition, the briefing on the Bill states that it will revive the prerogative powers relating to the dissolution of Parliament, and the calling of a new Parliament. (This provokes an interesting question whether prerogative powers – which are the residual powers of the Crown still exercised by the Executive branch of Government – retain this character once they have been provided for in an Act of Parliament.)
Furthermore, it is said that the Bill will reaffirm ‘the long-standing position that the courts may not block a dissolution (and hence a general election)’ through a non-justiciability clause.
Both the Judicial Review Bill and the Dissolution and Calling of Parliament Bill will be the subject of intense critical debate, particularly by constitutional and public lawyers as well as others interested in the operation of Government.
Finally, mention may be made of the Electoral Integrity Bill which make changes to the ways in which elections are run. In addition to the widely publicised proposal that voters should be required to bring some form of photo ID with them to the polling station, the Bill will also require election messages sent on social media should contain an ‘imprint’ showing who has published the message; improving access to polling stations for the disabled; and removing limits on the ability of UK citizens who live overseas (expats) to vote in UK elections.
The speech and the background briefing are available at https://www.gov.uk/government/publications/queens-speech-2021-background-briefing-notes
Revisiting ‘pre-charge bail’ – further changes in the wind
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:
- 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.
- 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
Setting time limits to police bail
In recent years there has been much complaint about the shadow can be cast over people’s lives when those people have become of interest to the police, but where the police do not have enough evidence to justify charging them with the committal of an offence. A number of well-known members of the public were 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 that there had to be limits to the time any person could be made subject to police bail (technically known as ‘pre-charge bail’).
Part 4 of the Policing and Crime Act 2017 contains provisions which reflect this decision.
The Act amends PACE Act 1984 by creating a presumption that where the police decide to release a person without charging them, the release should not be subject to the imposition of bail, unless defined pre-conditions are satisfied.
The conditions are
- Condition A is that there are reasonable grounds to suspect that the person on bail is guilty of the offence for which they were arrested and are on bail.
- Condition B is that there are reasonable grounds for believing either that further time is needed for the police to make a charging decision under police-led prosecution arrangements (where the person has been bailed for that purpose) or that further investigation is necessary.
- Condition C is that there are reasonable grounds for believing that the charging decision or investigation (as applicable) is being conducted diligently and expeditiously.
- Condition D is that releasing the person on bail continues to be both necessary
and proportionate in all the circumstances of the particular case (having regard, in particular,to any bail conditions that are or would be imposed).
Where the bail pre-conditions are satisfied, the period of bail will normally by limited to 28 days (3 months in Serious Fraud Office cases) though the period may be extended to three months by senior police officers, with the possibility of further extensions approved by the magistrates.
Further information is available at https://www.gov.uk/government/collections/policing-and-crime-bill
Reflecting on how measures set out in the Queen’s Speech 2015 may impact on the English Legal System
The Queen’s Speech sets out each year the bare bones of the proposed legislative programme for the forthcoming 12 months.
I’ve been looking through the detailed briefing to see whether there are issues which will affect the English Legal System (ELS) that may not be apparent from the speech itself.
Here are my personal comments:
Enterprise Bill.
The headline aim of the new Bill is to reduce red tape and improve the ways in which regulators work. But there are also two specific ELS related issues that may be noted:
- Establishing a Small Business Conciliation Service that will handle business-to-business disputes without the need for court action, tackling in particular, late payment issues;
Immigration Bill
Among proposed measures to be set out here, there are proposals to change the way in which immigration appeals work. In particular, the Government plans to:
Extend the principle of “deport first, appeal later” from just criminal cases, to all immigration cases. In 2014 thelast government cut the number of appeal rights but other than foreign criminals, migrants retain an in-countryright of appeal against the refusal of a human rights claim. We will now extend the “deport first, appeal later” principle to all cases, except where it will cause serious harm.
To create a presumption that suspects will be released without bail unless it is necessary.The Bill would initially limit pre-charge bail to 28 days, with an extension of up to three months, authorised by a senior police officer.In exceptional circumstances, the police will have to apply to the courts for an extension beyond three months, to be approved by a magistrate.This will introduce judicial oversight of the pre-charge bail process for the first time, increasing accountability and scrutiny in a way that is manageable for the courts.
Setting time limits for bail?
One of the curiosities of the Criminal Justice system is that, while there are strict limits on the time a person may be held for questioning in a police station, there are currently no limits on the time a person is out on police bail. This can result in a person remaining under suspicion for a very considerable length of time. In a recent speech, the Home Secretary has announced that there would be a consultation on the issue and has asked the College of Policing to review current practice in police forces.
See http://www.bbc.co.uk/news/uk-29624498
and https://www.gov.uk/government/speeches/home-secretarys-college-of-policing-speech
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 