Friday, 15 August 2014

The scandal of "endless" Police bail

Following the arrest of an individual, the Police are empowered to release the individual on bail.  Such bail may have onerous conditions.  The normal life of the individual may be seriously affected by such conditions. If the individual is on such bail for an extended period then it may be tantamount to some form of "extrajudicial" penalty.  The power of the Police to impose bail conditions stems from section 27 of the Criminal Justice and Public Order Act 1994.  Conditions imposed by an officer may be varied by the magistrates court on application by the suspect (section 47(1E) PACE).

The Crown Prosecution Service (CPS) has announced that in relation to an allegation of unauthorised computer access, an individual has been cautioned for an offence contrary to Section 1 of the Computer Misuse Act 1989.  This follows the arrest, some two years ago, of Times journalist Mr Patrick Foster as part of Operation Tuleta.   The Guardian 15th August has covered this story.  The lawyer and journalist David Allen Green has also extensively covered this case (and others) whilst writing for The New Statesman - e.g. 29th August 2012 Nightjack: arrest made and 12th April 2012 The Times and Nightjack: an anatomy of a failure.

Although there

is ordinarily a maximum of 24 hours that an arrested person can be questioned without charge, separate sessions of questioning not exceeding a total of 24 hours can be spread out over an unlimited period of time.  (In certain situations, questioning may take place for  longer than 24 hours).  The ability of the Police to "stop and start" the "PACE Clock" was the subject of legislation following the Hookway case in 2011 (previous post) - Police (Detention and Bail) Act 2011 (amending section 47 of the Police and Criminal Evidence Act 1984).   [Sidenote: Almost 3 years later, the government maintained and publicly available legislation database has not yet caught up with this important amendment to section 57].

The continuation of bail for lengthy periods has not been without comment.  For instance, as reported by The Guardian 29th September 2013, LIBERTY has called for a 6 month time limit to be imposed. The Law Society called for a 28 day limit - BBC 28th May 2013

As quoted in The Guardian article 15th August, Mr Foster stated:

.... that in order to bring this “regrettable episode to an end”, he decided to accept the offer of a police caution.  He described the “heavy handed police investigation” into something that happened when he was a 24-year-old junior reporter as a “nightmare”.  Foster said he did not know whether he would have been in charged if he had rejected the caution, but added that he could not “in good conscience” have risked putting his family “through many more months of heartache, and mounting legal costs”.  Foster has been unable to pursue his career as a journalist while in legal limbo over the past two years.  “No one should ever have to suffer the extrajudicial punishment of two years on police bail, and my sympathies are with others still languishing in this invidious position,” he said.

It is surely high time this sort of injustice was brought to an end ..............!

Crown Prosecution Service - Bail


  1. Liberty, The Guardian and The Law Society seem to exist in a different reality; one of limitless resources and small workloads. In reality ...
    My experience as a police officer has been that senior management were very keen to have named suspects for offences arrested as soon as possible, even though in many cases this was well before there would be enough evidence to put before the CPS. So the suspect would have to be bailed to that the evidence could be put together. The keenness to arrest came through a fear (not unduly misplaced) that if the suspect continued to offend and it looked as though the police "had done nothing" because he or she had not been arrested, the police would be castigated by the press, the IPCC etc especially if the offender was violent or presented a risk to society. Sometimes an early arrest was necessary in order to seize items such as computers and phones as this would be part of the evidential case.
    Then of course, this would not be the only investigation we would be working on. As an officer on borough in London I routinely had 15-20 live crimes being investigated and would also be expected to deal with prisoners coming in on a daily basis. (Some colleagues had 30-40 live crime investigations.) Add into the mix cases which involved financial institutions and getting evidence together could take years. That also goes for cases which involve downloading computers etc. Do these organisations actually know how long that takes and how long it can take to wade through the mountain of material that will be produced.
    The longest time I had someone on bail for was 14 months. She was eventually charged with 27 fraud and theft offences to which she pleaded guilty. Did I really want to have her on bail for that length of time ? Well no, I didn't. But realistically I could not put the case together any faster than I did. Had it been the only investigation I was working on things might have been different.

  2. I'm happy for the Police, CPS etc. to take a pragmatic view of the rules laid down for them; after all, they don't have enough time or enough money, and you can't expect them to follow the law right down to the letter in those circumstances.

    Just as long as they allow a similarly generous leeway to citizens who are alleged not to have followed the law. "Yes, I know that shoplifting food is wrong in theory, but I have to eat. This is reality, not your fantasy world where nobody nicks anything..."

  3. The right to apply to the magistrates' courts to vary conditions should be better known and more used. I was the Chair of the Bench last week when we varied the conditions of an applicant's bail to allow him to travel abroad. It was a Customs prosecution and HMRC had the impertinence to say that if he was to be allowed to travel on business - and they opposed it tooth and nail - he should be required to provide a list of all the meetings he intended to go to; whom he was to meet, when and where. We decided that conditions of bail are intended to allay concerns about flight risk - which we thought were greatly overstated - not to help the prosecution in their investigations, and imposed no such condition. We had the pleasure of seeing the Customs chap hand over his passport in front of us.

    Of course, we could be wrong, and the man may disappear and never be seen again. But every time we bail a man accused of domestic violence to another address with a condition of no contact and stay out of the road there is a risk that he will go back and finish the job off. But we don't bang them all up, do we?

  4. Yesterday my son was arrested at one of the main shopping centres in Cambridge, while playing the piano. (He's been playing there for several months.) He was put in the cells overnight; he now has to report to the police daily. He is no longer allowed to visit the shopping or the public library. He has been on 'endless bail' for a year now; he has not been charged. He has been in a halfway house in Cambridge for two years, following mental illness. He has committed no crime to any person.

  5. What an interesting piece, I had not heard about pacing the twenty-four hours over a time period. That is really something odd and can be an annoyance. It really makes me wonder how often it has been reported that police extend the twenty-four hours over a month or a year. It’s a great insight to an interesting law.

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