The Government has recently announced a consultation into pre-charge bail following criticism of the new Release Under Investigation Regime. Announcing the Review Home Secretary Priti Patel accepted the concerns commenting that:
‘Since rule changes in 2017 there have been concerns that pre-charge bail is not always being used where appropriate to protect victims, investigations are taking longer to conclude and that this has had adverse impacts on the courts.’
She further intimated the Government was looking to achieve a balance:
‘Our aim is to have a system which protects victims, enables the police to investigate crimes effectively and respects the rights of individuals under investigation. ‘
In order to address whether this consultation can deliver an effective resolution of the problem it is worth revisiting how we came to be in this situation.
The Historical Context
Before 2017 both practitioners and campaigners were calling for the end of unrestricted pre-charge bail periods which resulted in individuals accused of a crime being left in limbo for months or even years before being notified as to whether the case would go any further.
This practice came to the forefront of the public eye in the case of Paul Gambaccini who was left on pre-charge bail for a year before the cases being brought were dropped.
On the back of this, the Government in 2017 through the Police and Crime Act brought in reforms to combat the issue.
Amber Rudd the then Home Secretary stated
'Pre-charge bail is a ‘useful and necessary tool but, in many cases, it is being imposed on people for many months, or even years, without any judicial oversight - and that cannot be right.
These important reforms will mean fewer people are placed on bail and for shorter periods. They will bring about much-needed safeguards – public accountability and independent scrutiny – while ensuring the police can continue to do their vital work’
In effect, the reforms introduced time limits to pre-charge bails, initially a 28-day time limit which could only extended if it could show that it was appropriate and necessary. For example, in a complex case, an extension of three months can only be authorised by Superintendent or above. If there was need for a further extension that would have to be to be achieved via the Court.
Ministers at the time proudly stated that the reforms “would bring an end to those long periods of bail without any independent oversight that we have seen in the past” and praised the police for their swift and efficient work in preparing for these new rules.
Release Under Investigation – What actually happened
Unfortunately, the pre-charge bail reforms came at a time when many police forces around the country were suffering from both a lack of funding and resources. Faced with the new time restrictions placed upon them and lack of resources to effectively investigate allegations it was inevitable that they would look for an alternative to the new regime for bailing suspects pre-charge. Release Under Investigation (RUI) was seemingly the answer.
What is a RUI
If a suspect is released under investigation (RUI) it means that the individual will be released from custody but unlike a pre-charge- bail, there will be no conditions placed upon them. Effectively they are free to return to their normal lives until the day that they receive a letter containing a ' postal requisition' to say that they are being charged or being informed that charges will not be pursued.
The police, once they have released the individual, are at liberty to continue with their investigation without any time limits being placed upon them. Additionally, once released the police are not mandatorily forced to tell the suspect that the investigation is still on-going or even that it has come to an end. Particular poor practices arose in regard to this.
What was the impact of RUI?
The Law Society in recent reports highlighted a significant decrease in the use of bail post-2017 and an upward trend in the use of RUI's. For example, the London Metropolitan Police Force in 2016- 2017 (Pre- Reform) bailed 67,838 individuals before being charged whereas post-reform 2017-2018 only 9881 were bailed but 46,674 were released under investigation.
This pattern can be seen around the country, for example in Cleveland 2016-2017(Pre-Reform) 1693 individuals were bailed before being charged whereas in 2017-2018 only 78 were bailed and 4364 were released under investigation. Similarly, in Nottingham in 2016 -2017 (Pre-Reform) 7392 individuals were bailed before being charged, whereas 2017-2018 562 bailed and 4728 released under investigation.
What are the consequences of RUI's to the individual involved?
The current Law Society briefing highlights investigations where RUI's have been used which have been allowed to run on for months and years. They highlighted in the briefing that in Nottinghamshire the average individual released under RUI is under investigation status for 114 days and in Surrey 288 days. In my own firm we have seen cases left by the police in limbo under RUI for 12 months and above , furthermore, despite the fact that the National Police Chief's Council ("NPCC") issued guidance in 2019 which recommended that suspects be updated every 30 days, it can be seen that the majority of police officers fail to do this.
Inevitably the longevity of the investigation stage has negative impacts on both the victim and the suspect.
They are both are left in a situation where they are placed under enormous stress without any real support. Victims are inevitably left in a situation where they do not know for a long period whether they are believed, when they may have to go to court, whether they will obtain justice, or if the accused will continue to be an immediate risk to them. Questions such as can they go on holiday, can they move, what should they do if they come across the accused on the street or the supermarket all become major issues for them every day.
The suspect is equally left in a situation where they never know when the letter will arrive and therefore unable to move on in their lives. They may find it impacts on their employability , their family relationships , their reputation , their financial stability and it is extremely likely that this may cause a huge strain on their mental health and those around them in a process which at the end of the day could come to nothing. It can be particularly damaging in sexual offence cases where a suspected person may have children or access to them , as this may often then be restricted.
Quite apart from the enormous impact elongation of the process has on the key players, sight should not be lost of the increased cost of logistics in prolonging the process in order to release the pressure on the Police. Individuals move and for one reason or another may not provide addresses to the investigation force. When the postal requisition arrives it may well go to the last known address and as a result, the individual may not even know that they are charged until they are arrested and dragged to court for not meeting the requisition requirements, all adding to the cost and time involved in the process .
Complainants and witnesses in such cases may be asked to give evidence in trials that are no longer fresh in their minds.
Many investigations have themselves fallen into disarray as Officers go off sick as they are pressured to handle an increasing burden of cases under investigation.
What about the Lawyers
Firstly, the legal aid fee scheme is not fit for purpose and RUI's put an even greater strain on this.
Solicitors who attend their clients on legal aid basis at the police station do so on a fixed fee and once they have been released on RUI's there is no additional funding to cover the subsequent issues that arise. Those on RUI's will inevitably need further support or advice in respect of chasing up their investigation. Acting Solicitors are left in a lose-lose situation. The advice they give to their client about chasing up an investigation whilst on a RUI is quite simply not clear cut and brings risks since chasing up after some time could result in the police restarting an investigation that had previously been forgotten about. ‘Let sleeping dogs lie’ can then seem attractive but equally fails to be cost effective or to bring a matter to a final conclusion.
There is certainly no recompense of the inevitable extra resources needed to deal with a stressed and emotionally strained client who has been left in purgatory.
The Public criticism of RUI’s
Similar to the pre-2017 reforms of the pre charge bail period there is now a growing chorus of criticism of RUI's.
The Law Society is one of the loudest critics of RUI's having published a briefing that has made several recommendations.
- The Government introduces time limits for RUI.
- That the police report data on RUI usage centrally.
- That the police ensure decisions on RUI/bail are proportionate and informed by the potential risk to the public.
Following on from the briefing which at the time received widespread media attention the Home Office late last year indicated that they would be reviewing RUI's
It was further announced in February of this year that there will be a public consultation on pre-charge bail reform.
This has been welcomed by Richard Miller Head of Justice at the Law Society of England and Wales who has stated that the Law Society will fully contribute to the consultation..
What is the Government now Proposing?
The return of pre-charge bail
Firstly The Government is proposing to end the presumption against pre- charge bail, instead requiring pre-charge bail to be used where it is necessary and proportionate and to add a requirement that the police must have regard to the following factors when considering whether application of pre-charge bail is necessary and proportionate:
- The severity of the actual, potential or intended impact of the offence;
- The need to safeguard victims of crime and witnesses, taking into account their vulnerability;
- The need to prevent further offending;
- The need to manage risks of a suspect absconding; and
- The need to manage risks to the public.
The Control of the Grant of Bail – Different Models
The Government propose to amend the statutory framework governing pre-charge bail timescales and authorisations and seeks views on three potential models.
All three models propose:
- restoring the initial bail authorisation to custody officers
- introducing additional points at which the investigation including the use of pre- charge bail will be reviewed;
- maintaining an initial bail period - but increasing its length; and
- maintaining judicial oversight but changing the point at which judicial oversight of authorisations is introduced.
The proposals suggest different models of authorisation and consequent time periods .
Effectiveness of bail conditions
Finally, the Government is seeking views on how bail is controlled and the relevant sanctions that should be imposed for those in breach.
What should we make of the new proposals?
It would be wrong not to recognise this is a genuine attempt by the government to respond to a serious issue , but the challenges in finding an effective solution will be diverse and simply returning the presumption of bail and tinkering with the time periods and authorisations for this may not necessarily address this complex problem .
Unless the Police and CPS are adequately resourced to deal with any new system, then it is likely that the proposals will not meet their aspirations.
The consultation also recognises the unique problem that many suspects are now never arrested but attend as volunteers and having an effective way to monitor these voluntary attenders will be an equal challenge.
Currently the system for booking in volunteers in complex and administratively challenging for the police with technology or equipment that often does not work.
The reality is a new system of pre-charge bail which offers assurance to victims and those under investigation is urgently needed, but it has to be workable and effective. The outcome of the consultation will need to be watched with interest.