UPDATE 13th July: Police (Detention and Bail) Act 2011
UPDATE 7th July: The Bill has passed through the House of Commons. The House of Lords Select Committee on the Constitution has issued a report about the Bill (16th Report Session 2010-12) and draws attention to the retrospectivity which "offends against the principle of legal certainty and weakens the rule of law." They also indicate that "practices of Police bail need to be more broadly revised" and this Bill does not provide opportunity for Parliament to consider that. JUSTICE also issued a briefing paper which points out that the "proper course" would have been to ask the High Court to stay the Hookway judgment and then to apply for an appeal to the Supreme Court. The failure to do this has resulted in Parliament having to consider a Bill to reverse a High Court decision before the courts have had a final opportunity to pronounce on the existing law. Whilst Justice state that they consider the High Court judgment to be incorrect, they nevertheless raise some interesting and important issues in paragraph 9 of their paper. These include the Police practice of extending Police bail for as long as possible whilst the time available to them is eked out. The pity is that it may now be some considerable time before Parliament gets an opportunity to consider those issues. Interestingly, the House of Lords document does not mention that police detention is initially for a maximum of 24 hours. They merely mention 96 hours! However, nothing in the Bill alters the 24 hour basic rule.
Julian Huppert MP made some points in the debate. He said that he hopes that opportunity will be taken to look at the wider issues involved in Police bail which, he argues, can be very oppressive. He also referred to the absence of a Police bail power in terrorist cases.
--- Original Post ---
The government has now presented the Police (Detention and Bail) Bill to the House of Commons. It is a short bill and the usual "cut and paste" technique is adopted - so here goes:
1 Amendment of Police and Criminal Evidence Act 1984
(1) In section 47 of the Police and Criminal Evidence Act 1984 (bail after arrest), in
subsection (6), at the end insert “and any time during which he was on bail
shall not be so included”.
(2) In section 34 of that Act (limitations on police detention), in subsection (7), at
the end insert—
“But this subsection is subject to section 47(6) (which provides for the
calculation of certain periods, where a person has been granted bail
under this Part, by reference to time when the person is in police
detention only).”
(3) The amendments made by subsections (1) and (2) are deemed always to have
had effect.
2 Extent and short title
(1) This Act extends to England and Wales only.
(2) This Act may be cited as the Police (Detention and Bail) Act 2011.
Section 47(6):
Where a person who has been granted bail under this Part and either has attended at the police station in accordance with the grant of bail or has been arrested under section 46A above is detained at a police station, any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this Part of this Act and any time during which he was on bail shall not be so included
Words in blue show the amendment.
Section 34(7):
For the purposes of this Part a person who—
(a) attends a police station to answer to bail granted under section 30A,
(b) returns to a police station to answer to bail granted under this Part, or
(c) is arrested under section 30D or 46A,
is to be treated as arrested for an offence and that offence is the offence in connection with which he was granted bail
But this subsection is subject to section 47(6) (which provides for the
calculation of certain periods, where a person has been granted bail
under this Part, by reference to time when the person is in police
detention only)
Words in blue show the amendment
Clause 3 of the Bill clearly has retrospective effect - just in case the law actually was as McCombe J decided in the Hookway case. The Supreme Court will hear the appeal against McCombe J's judgment on 25th July.
For the earlier Law and Lawyers post on this - see "For how long can the Police hold me?" - below.
Explanatory Notes to the Bill are available. Research Paper on the Bill.
As a person who has been subjected to onerous bail conditions, both pre- and post-charge, I agree with the recommendations in JUSTICE's briefing.
ReplyDeleteI deplore the use of emergency Parliamentary procedures to rush through legislation concerning the liberty of persons not only unconvicted, but not even accused, of any criminal offence, and the lack of consultation with expert bodies or any select committee scrutiny as well as the dearth of debate on the issues in the Media, as it swamps all outlets with its introspective analysis of its own corrupt relations with the Police.
I would only add that the Courts themselves seem to lack expedition in the disposal of cases, consigning accused persons (innocent until proven guilty) to long periods on bail, often on onerous conditions demanded by the Police.
Assuming the Appellant does not withdraw the Supreme Court case, it will be interesting to see what their Lordships have to say about the retrospective element of the new Act. It is hard to imagine them endorsing it, but perhaps they might find an ingenious way of avoiding the question.