28 Day Bail – A failure in waiting

On the 3rd of April Home Secretary Amber Rudd brought in a 28-day limit on pre-charge bail. This is bail which can be imposed where there is as yet insufficient evidence to charge a suspect and they are released pending further investigation.

The Government claims that this will bring to an end the old system which allowed people suspected of criminal offences to be subject to police bail for months or even years.

This follows criticism after celebrities, such as the wholly innocent Paul Gambaccini who was on police bail for a year, were eventually released without any charges being brought. Of course for many years before suspects were routinely on bail for months and even years, often for fairly minor or uncomplicated matters; these would not make headlines and as such there was little impetus for change – after all, would the Government had been as concerned if a single father from Salford was on bail for burglary for 15 months? Of course not, though this was routinely happening.

Up until this change was made, there has been no limit as to how long the police may keep a subject on bail for. Solicitors would routinely warn clients that they were likely to be on bail for some time. Suspects are bailed to return on a given date and usually a day or two before the solicitor would call to see if the police wished to charge, release, re-interview or re-bail….more often than not, it was the latter.

The reasons for repeated re-bails usually fell into two categories; the first was that investigations were still being made and the second is that the Crown Prosecution Service were deciding what to do. Often the CPS would look at a case with a view to making a charging decision and then direct the police to make further enquiries and more delay would follow.

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Clearly the reforms will have an impact on the CPS and Police – they will need to work more efficiently and improve systems. The Police can apply for a single extension for three months.

However – as is so often the case, the change in rules looks like knee-jerk legislation which has been brought in with little consultation with those who were best placed to understand; criminal defence lawyers and the police officers who actually undertake the investigations.

No doubt the reforms will make a difference to suspects on bail for many minor or less complex matters; somebody arrested for shoplifting or a fight in a pub may expect to know within 28 days if they will be charged. However this simply cannot work for more complex cases.

Take for example serious fraud. One of my clients was on police bail for over four years. The allegations involved the international trade of commodities with a total value in excess of a billion pounds. There were a large number of companies involved and numerous individuals as suspects or witnesses. Officers of HMRC needed to forensically examine dozens of bank accounts, computers, mobile phones and other evidence – 28 days…no chance….another 3 months….no chance.

It is the same for complex drug cases, sex cases; anything where extensive enquiries need to made to source evidence. Evidence which needs forensic or expert consideration will obviously take longer. There are only a handful of facial mapping experts in the UK, who can match a face to a screen grab from CCTV. Labs need to carry out DNA testing, analyse sim cards, access hard drives. All of this takes time. Once it has been secured, the Police may wish to re-interview a suspect. All in 28 days….no chance.

So what may happen? Well, with some luck suspects on bail for minor matters will not have to wait lengthy periods for a decision. That is a positive. The police and CPS may need to improve systems. Another positive.

Now the negatives; Under pressure, charging decisions may be made by the Police when they are not in possession of the full facts in a case. The suspect in interview may make mention of matters which the Police, as independent investigators, ought to properly follow up on. Under time pressures, they may not. Key evidence may not come to light and beleaguered legal aid defence lawyers will not have the resources to make these enquiries themselves.

On complex cases, the whole premise unravels. Suspects will be released from bail but the investigation will continue. If the Police wish to re-interview, they will ask the suspect to attend a police station or may simply re-arrest. If they find enough evidence to charge, they will re-arrest and charge or simply send a Summons requiring the suspect to attend Court. This may be months or years later – in short, it makes no real difference to the old system. Yes a suspect will not need to attend a bail appointment every 3 months or so, but the Police will be under even less pressure as they will not need to work to the next bail date.

This change was put forwards by the Prime Minister Theresa May whilst she was Home Secretary, she stated “I have been clear that it is simply not acceptable for individuals to spend months and in some cases years on pre-charge bail, with no system of review, only for charges never to be brought against them.”

The suspects in such matters will continue to live with the Sword of Damocles dangling above them. Much as when they were on bail, they will know that the investigation is continuing and may continue for months or years until a decision is eventually made.