BSQ Briefing - New pre- charge police bail rules are "flawed" says expert

New rules dictating the length of time that suspects in a police investigation can remain on bail pending a decision on charge are due to take effect in April 2017. Helpfully, the Home Office has issued guidance in advance of their introduction from the College of Policing on how the new scheme will work. While the changes are to be welcomed, defence lawyers advising individuals waiting for months or in some cases years for a CPS charging decision will find little to cheer about.

The proposals address some of the criticism raised in the media (see earlier blogs) particularly after the collapse of several recent Operation Yewtree investigations (including that concerning the DJ Paul Gambaccini, who has written a book (“Love Paul Gambaccini”) about his experience).

But the new rules are flawed because they place no limit on the length of time that a suspect can remain on bail while the CPS consider whether or not to charge. This was one of the main issues highlighted by Gambaccini who remained on bail for over a year pending a decision to proceed with the allegations of sexual misconduct made against him.

Nor will there be any opportunity for defendants to ask magistrates to review the length of time the CPS takes over a decision to charge. In our experience charging decisions can take months, if not years in some cases, a situation which is clearly unacceptable and arguably in breach of ECHR guarantees that criminal investigations should be carried out within a reasonable time.

However, there is much to be welcomed in the proposals which bite in the context of police bail investigations where enquiries are still being carried out before a file is passed to the CPS for a charging decision. The proposals include provisions that;

-       Police bail during an investigation must be reviewed at regular intervals i.e. at 28 days, 3 months and 6 months by an authorising officer of the rank of inspector or above (although the clock will stop whenever a file is with the CPS for a charging review);

-       Defence Lawyers will be allowed to make representations to the police re e.g. conditions imposed on bail and the length of time an investigation is taking;

-       There is an onus on the police to keep suspects informed of the progress of an investigation;

-       Suspects will be able to ask a Magistrate to review the grant of bail in certain circumstances after an internal police review;

-       Bail can only be extended beyond a period of 6 months if a case is deemed to be “exceptionally complex” with the approval of an authorised prosecutor;

Importantly, the police will be able to opt out entirely of the regime if they deem that a suspect can be released without granting bail – there is no barrier to an investigation continuing in this situation.

Practitioners can also expect some interesting litigation concerning the interpretation of when it is “necessary and proportionate” for bail to be granted by senior police officers and the courts.

Finally, perhaps the most useful aspect of the new regime from a defence lawyers point of view will be the ability to appeal to a magistrates to review a decision to extend police investigative bail. From disclosure requests and by cross-examining the officer in the case in the course of this application clients will have a tactical opportunity to obtain far more information about the progress of an investigation than the police currently disclose or may necessarily wish to disclose.