The bail row — a loophole to be closed, or an abuse about to be sanctioned?

July 6th, 20111:08 pm @

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From the reporting of the recent High Court ruling on the detention of suspects, you would think we were at risk of chaos on the streets as criminals walk free. Home Secretary Theresa May is to bring in emergency legislation to “close the loophole” which would prevent the police repeatedly arresting and questioning a suspect over a period of months or years. Except that this isn’t a loophole, it is how the law was intended to work. The threatened chaos is imaginary, while the effect of rushed legislation will be to legitimise a culture of bad practice on the part of the police and the Crown Prosecution Service.

To understand how we got into this mess, we must get two things clear: the intentions represented in the Police and Criminal Evidence Act (1984) — or PACE — which the government is proposing to amend; and the strains under which both the police service and the CPS have been operating over recent years.

PACE was the most important piece of legislation on policing in the UK during the twentieth century. It sets out the powers of investigation and detention available to the police, and also provides the checks and balances which regulate those powers. Where somebody is arrested, it gives them the right to have their family informed. When they are questioned, it gives them the right to independent legal advice. It also gives the police a period of 96 hours following an arrest during which a suspect may be held for questioning, before a decision must be made on whether or not to charge. This limit prevents — or should prevent — individuals being detained and questioned many times about the same facts in a way that is oppressive. However, PACE also makes it clear that police have the power to rearrest a suspect and question them further, where fresh evidence has come to light.

So when senior police officers suggest that hundreds or even thousands of bailed individuals are likely to escape justice because of the Hookway judgement, this needs to be taken with more than a pinch of salt. Greater Manchester Police put forward the example of a person suspected of a sexual offence, who has been interviewed once and bailed to return at a later date. They argue that the Hookway ruling would prevent this person being interviewed again. But as any criminal lawyer will tell you, in the overwhelming majority of cases involving sexual offences, murder or other serious crimes, the reason a suspect will be bailed and re-interviewed at a later date is the wait for forensic evidence to become available. This evidence is then put to the suspect by police in a second interview, which is exactly what PACE already provides for.

The current disagreement between the police and the courts has come about because a custom has emerged by which the 96 hour window between arrest and decision on charging is treated as a clock which can be stopped and started. The practice of repeated questioning over the same evidence, which the time limit was intended to prevent, is thus reintroduced. The result is that suspects may have the worry of proceedings hanging over them for as long as two or three years, with repeated interviews, often only to be released without charge. In a recent case in which my firm acted, a pensioner in his eighties was arrested and bailed for slapping a youth who was trespassing in his garden. The man spent several very stressful months awaiting further questioning, and died while still on bail.

Judges in the Magistrates Court and the High Court have already ruled against the practice of stopping the clock in this way. The Supreme Court is due to hear the case on 25th July, and yesterday rejected an application by the police to stay the High Court judgement until emergency legislation could be passed.

In their application to the court, the police raise the issue of domestic violence cases. They argue that the use of indefinite police bail is needed to prevent suspects from contacting the complainant in the case. The problem with this argument is that, in terms of the evidence required, domestic violence cases are the simplest on which to make a decision to charge. Where most cases require investigation and assembling of evidence, the CPS charging policy regards a statement from a domestic violence complainant to be sufficient evidence to charge. In fact, the Home Secretary has stated that she wants to hand the charging decision in such cases over to the custody officer at the police station. So why is it that the CPS generally takes several months to make a decision?

Here we come to the other vital piece of context, without which the row over detention cannot be understood. Both the CPS and the Police have experienced cuts and mismanagement, the result of which is that these services are unable to investigate and assess even simple cases efficiently the first time around. These strains on the system explain why delays, long periods of bail, and re-questioning with no new evidence have become commonplace. Such delays are bad for those suspects against whom no charge will ever be brought, and no less bad for the victims of crime, themselves kept in limbo.

Instead of doing something about this bad practice, the Home Secretary offers us scaremongering and — not for the first time under this government — the use of emergency legislation to short-circuit proper debate. The 96 hour limit set by PACE and emphasised by the judgements in the Hookway case is not a loophole to be closed; rather, it represents the intention of parliament that the Act should reflect the basic constitutional principle of the liberty of the suspect. The government knows that, after a District Judge and a High Court Judge have found against the current police practice, the likelihood is that the Supreme Court will take the same view. Rather than await that judgement, it offers emergency legislation to prevent imaginary chaos. The result will be a clear signal that police can make arrests, carry out a superficial first interview, and then re-interview as many times as they choose over a period of months or years to build a case.

If parliament passes the government’s emergency legislation tomorrow, the emerging culture of ‘bail and see’ will become official policy, at a cost to both suspects and victims alike. It is a culture which abuses the most important policing legislation of the last hundred years, the subject of careful parliamentary scrutiny — an abuse now set to be rendered official by legislation thrown together in haste and passed without debate.

Joseph Kotrie-Monson is a lawyer at Mary Monson Solicitors, who represent Paul Hookway.