Police Arrest and Police Bail - should there be a time limit?

Updated

Neil Wallis, writing in The Guardian 28th May, points out that it is not unusual for individuals to be on police bail for months before they are either charged or the investigation is discontinued.  Wallis says that some 3000 families are currently affected by this.   Such bail may well be on restrictive conditions  In fact, this situation has existed for some time and this post looks at police powers of arrest and the power of the police to issue bail.  The Law Society is calling for a 28 day limit on police bail after which the police would have to justify further restrictions to a court - Law Society 29th May

Powers of arrest:

The previous post considered arrest by citizens.  It is unsurprising that Police powers are much wider in scope.

Police powers
of arrest are in the Police and Criminal Evidence Act 1984 section 24.  `The following has applied since 1st January 2006 when amendments to the law were introduced by the Serious Crime and Police Act 2005.

Arrest without warrant: constables

(1) A constable may arrest without a warrant -
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone whom he has reasonable grounds for suspecting to be committing an offence.

(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

(3) If an offence has been committed, a constable may arrest without a warrant -
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.

(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.

(5) The reasons are—
(a) to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);
(b) correspondingly as regards the person's address;
(c) to prevent the person in question—
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii )causing loss of or damage to property;
(iv) committing an offence against public decency (subject to subsection (6)); or
(v) causing an unlawful obstruction of the highway;
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

(6)Subsection (5)(c)(iv) applies only where members of the public going about their normal business cannot reasonably be expected to avoid the person in question.

Section 24 merely refers to 'offences' and so the powers of arrest extend to any offence however minor.  The former concept of 'arrestable offences' (which existed from 1st January 1968 to the end of 2005) has been abolished.  The powers in section 24 are a simplification of the law but, at the same time, an extension of police powers.

The extensive use of the word 'reasonable' in the section requires that objective grounds exist.  This is a limitation on the powers but is not a particularly high barrier and is usually difficult to contest.

Thus, 24(1) is limited to cases where an offence is about to be committed or is being committed but, under 24(1)(c) or (d) the constable only requires reasonable suspicion.

24(2) requires reasonable suspicion that an offence has been committed and a constable is then entitled to arrest anyone he reasonably suspects is guilty of it.

24(3) requires that an offence has been committed and the police may then arrest anyone they reasonably consider to be guilty of it.

In the case of all arrests, one of the grounds in 24(6) must exist.  These are hardly a formidable barrier to an arrest - e.g. to check address or to allow prompt and effective investigation of the offence or the conduct of the person in question.

See PACE Code G - 2012

How long may bail be imposed for?

Bail may be imposed by the police subject to legislation - in particular the Police and Criminal Evidence Act 1984 (PACE) and the Bail Act 1976.  These Acts are almost unbelievably convoluted and there is a desperate need for a clear statement of police powers in this area.  Where bail is imposed it may be conditional bail and the conditions imposed may prove to be onerous for the individual.

The legislation imposes no clear limit on the time for which an individual may be subject to police bail. This is the issue raised in the article by Neil Wallis who was arrested in 2011 on suspicion of  'phone hacking' and spent 19 months on police bail before a decision was taken not to charge him.

A useful analysis of the problem may be seen at BBC News - Law Society calls for 28 day limit on police bail.  The limit suggested by the Law Society would be subject to extension if authorised by the Magistrates' Court - see Law Society announcement.  According to the BBC article - More than 57,000 people are on police bail in England, Wales and Northern Ireland.  In one case a person arrested three-and-a-half years ago remains on bail.

The data, obtained by a BBC Radio 5 Live Freedom of Information request shows that at least 57,428 people are currently on bail. Of those, 3,172 have been waiting for more than six months for a decision on charges.

Where a person is subject to police conditional bail it is possible to ask the police to vary the conditions.  Also, the Magistrates Courts Act 1980 s43B may enable a person subject to police bail to apply to the Magistrates' Court to vary bail conditions imposed by the Police.  However, there is always the risk that the court might impose more onerous conditions.  As far as I am aware, very few individuals make such applications but I do not have any exact figures.

This is a far from a simple matter and there has to be recognition that some, though not all, police investigations are complex and time consuming.  There must also be better recognition of the impact on the lives of those individuals who are subject to police bail and the 'Convention rights' of the individual come into play.  Where the balance has to be struck ought to be the subject of a review and the legislation should be restated in straightforward form.