The Police and Criminal Evidence Act 1984 gave police the power to bail someone who has been arrested while they investigate an allegation. Its authors could never have imagined that today there would be an estimated 70,000 people on police bail and that 5,000 of those have been on bail for more than 6 months.
A growing number of politicians, lawyers and former ministers have demanded reform. There are no time limits, which can punish people by restricting their freedom when there is only suspicion against them, not even a charge. The police can add conditions, for instance a curfew, a condition of residing at a particular address or a ban on associating with specific other people. Any one of these can have a hugely restrictive impact yet it is difficult to challenge their fairness. The government has cut legal aid so solicitors are less often at police stations to make representation. Custody sergeants are not particularly likely to listen to suspects themselves. However unfair or restrictive bail conditions are, it is a criminal offence to break one.
Campaigners want to see a time limit of 28 days after which the measure must be reviewed by a Judge not the police.
The police have a duty to investigate crimes in a timely manner. Mr & Mrs X were arrested on 27th September 2012 and their homes and offices searched. They were interviewed and bailed to return on March 12th 2013, with a condition of residence imposed and their computers and iPads seized. They were re-bailed repeatedly until June 30th 2014 when they were warned that the investigation is continuing but were released from bail. Clearly it has to be asked why they were ever on bail in the first place. In West Mercia one person has been on bail for more than 723 days and will hear this month if their case is to be referred to court.
The issue has come to the fore because a number of journalists arrested in the phone hacking scandal were on long term bail and then told there would be no further action. Similarly "celebrities" such as Jim Davidson and Freddie Starr who faced sexual abuse allegations were bailed didn't go forward that make the headline.
These recent long-term bail victims have Theresa May to thank. Three years ago the Home Secretary had the ideal opportunity to change the law. In May 2011, a curious High Court ruling in a case called Hookway said that nobody could be kept on police bail for more than 96 hours. This was in answer to the problem, even then, of people being kept on conditional bail for far too long, but it clearly left the police with severe problems.
The Home Secretary did nothing for weeks and then rushed through emergency legislation simply reversing the case and restoring the status quo. She made no attempt to find a balance between the liberties of the bail victims and the reasonable requirements of a police investigation. If there is to be legislation shortly, as campaigners demand, it means that she will have enacted two sets of law, within three years, having opposite effects and, in the meantime, hundreds of people have continued to suffer unnecessary limits on their freedom and arguably a breach of their right to be considered innocent until proved to be guilty. As the then policing Minister, Nick Herbert said, the Home Secretary had just allowed the police to operate on the same basis as they had for the last 25 years.
In contrast, the College of Policing carried out a consultation and found that when people are bailed pre-charge, the effect on the police is that the investigation loses momentum. Officers know that they have the option of just repeatedly bailing people and with no pressure of time, other cases take priority. In the aftermath of this report, one police force challenged itself to cut bail times and easily succeeded. In light of those findings, from the police themselves, there really can be no argument against a time limit on pre-charge bail.
In Northumbria, police are making more use of asking people to come to the police station voluntarily - this reduces the demand on custody suites too. If there has to be an arrest for any reason, people can still be released without bail while investigations continue. It is only if those two avenues are considered and reasonably rejected that it can possibly be justifiable to arrest and put a person onto pre-charge bail. In that situation, only necessity and not convenience, can justify the imposition of conditions and the bail itself must, obviously be time-limited.
The campaign wants to see a time limit of 28 days but as a Police and Crime Commissioner I would not want to see officers spending time away from inquiries and going to court to justify extending bail when, for instance, it is frequently the case that forensic science reports take a number of weeks.
A maximum of twelve weeks would give the police a reasonable time to investigate while not imposing greatly on personal liberty. The level of injustice currently being suffered by 70000 people many of whom will never be charged with an offence but are spending their lives on restrictive bail is such that, one opportunity having been wasted it is now urgent for the Home Secretary to introduce legislation to settle this issue