Wednesday, 28 March 2018

"Released under investigation" ~ what is this?

On 18th March 2018, following a road traffic accident, Anthony David "Ant" McPartlin was arrested on suspicion of driving with excess alcohol contrary to the Road Traffic Act 1988 section 5.

Media reports - e.g. Yorkshire Post 19th March - inform us that Mr McPartlin was subsequently "released under investigation."  The investigation referred to presumably relates to the detail of the accident which involved 3 vehicles.  A number of individuals were treated at the scene for minor injuries, and a child passenger from one of the cars was taken to hospital to be checked as a precaution.

Regarding driving with excess alcohol, the Road Traffic Act 1988 sets down the process to be followed by the Police including section 7 dealing with the taking of samples of breath, blood or urine.   Under section 8, the sample with the lower of proportion of alcohol in the breath is the one used in any prosecution.

This process of "release under investigation" came in to the law on 3rd April 2017 when the relevant sections of the Policing and Crime Act 2017 was commenced.  Explanatory Notes for the Act are available - here.  (Explanatory notes are NOT part of the Act).

The introduction of the Policing and Crime Act 2017 changed the way the Police deal with pre-charge bail.  Unless specified criteria are met, individuals are released without bail but are "under investigation."  Police enquiries continue as normal but suspects are no longer required to return to a police station as they were when on bail.   Suspects released under investigation will be issued with a notice outlining offences that could lead to further police action while police enquiries are ongoing.

Where bail is still required it will be limited to 28 days, with the option for an extension to a maximum of three months. This extension can only be authorised by a superintendent if it meets specific criteria.

Many solicitor firms offer useful explanations of the "release under investigation" process - e.g. HERE and HERE.

There is no time limit applicable to "release under investigation."  Consequently, it appears that this change has not brought about the stated aims of the policy; that police investigations should be conducted and concluded promptly, such that the anxiety and uncertainty arising from being on police bail should not continue for an extended period of time.  Those "released under investigation" will have no idea if or when they may consider themselves no longer to be “under investigation.”   

Notwithstanding the absence of bail, people leave custody with a notice - see, for example, HERE - relating to potential consequences and the risks of perverting the course of justice.  In the absence of a set bail appointment, it is highly unlikely that there will be any updates forthcoming from the Police in connection with the investigation.  Additional uncertainty now hangs over people with no frame of reference as to when it might be safe to, say, speak with someone that may have been connected with the case in some way.

The use of "release under investigation" means that a suspect will not be subject to bail conditions.  Consequently, considerable care needs to be applied to this process.  Bail conditions can offer complainants some protection - e.g. a condition not to contact the complainant.  

If a decision is eventually taken to charge then a letter is sent to the suspect together with a "requisition" to attend court.  The requisition procedure was introduced by the Criminal Justice Act 2003 but, following a pilot scheme, all police forces in England and Wales were given authority to use this method from 3rd October 2011.

Those released under investigation should seek legal advice from a solicitor. 

Part 4 Chapter 1 of the Act amends the law relating to Police bail.

Explanatory Notes
Government - 3rd April 2017 - 28 day pre-charge bail limit comes into force 

Minted Law 31st March 2018

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