Should Police Bail Have a Time Limit?

Today the civil liberties group, Liberty, has called for a maximum limit on the time an individual can be kept on police bail.

The group has called for a change to the law given that some suspects arrested in the Metropolitan Police’s linked investigations into alleged bribes and computer hacking are approaching two years on bail without charge.

The group is calling for a six-month time limit. So the question is: should a time limit be introduced?

Police Bail

It is first helpful to identify exactly what police bail is. Police bail is the species of bail imposed by the police when they are investigating if an individual has committed a crime. The need arises for it when the police do not have sufficient evidence to formally charge an individual but consider that further investigation is necessary. The individual is released on the understanding that they will return to the police station at a later date to potentially face charges.

The police can impose conditions when they grant bail if they are necessary to ensure that the individual answers their bail (returns to the police station), does not commit offences while on bail, does not interfere with witness or otherwise obstruct the course of justice, and/or for their own protection (or, if the individual is under 17, for their own welfare or in his own interests). Conditions could include, for example, residing at a particular location, not going to a particular area, not contacting certain individuals, or a curfew.

Police bail is imposed under the Police and Criminal Evidence Act 1984 and the Bail Act 1976. The law on bail is widely thought of as unsatisfactorily complex.

Should There be a Maximum Time Limit?

There is no maximum time limit set out in the law for how long an individual can be kept on police bail. While Liberty is calling for a six-month time limit, others have called for an even shorter limit. The Law Society, the group that represents solicitors, has called for a 28-day time limit. Should a time limit be introduced?

Bail is undoubtedly a useful tool for the police. It allows the police to conduct their investigations in the knowledge that a suspect will return to answer potential charges. Police bail, along with custody time limits, is also hugely important to the individual. It prevents an individual being detained while the police investigate if there is sufficient evidence to charge the individual formally with a crime: it protects liberty.

However, being on police bail can be a very difficult for an individual. They will be concerned and worried about the prospect of being charged with a crime, which is undoubtedly stressful. Moreover, their liberty may be restricted if they are subject to conditions. Over a prolonged period this is very likely to be detrimental to the individual’s wellbeing. When there is no maximum time limit there is no incentive for the police to conduct their investigations as efficiently and productively as possible. Instead, the police can take an unlimited amount of time.

A simple way to resolve this would be to impose a maximum time limit on police bail, which could be extended by a magistrates’ court if there is good reason. For example, there could be a maximum time limit of six-months, extendable by a magistrates’ court for an additional period (perhaps three months at a time) if there is good reason to do so. This modification would be beneficial for everyone. The police could acquire an extension of time to investigate a case if there is good reason; this recognises that some cases are very complex and take a prolonged period to investigate. It also protects the individual because they would know that in six months they will be released from bail if there is not a good reason for extending it; it encourages more efficient police investigations.

To my mind at least, it is not satisfactory that an individual can be on police bail indefinitely. The individual can be protected in a way that does not inhibit police investigations by having a maximum time limit on bail which can be extended by the courts when there is a good reason to do so.

What are your thoughts? 

Lord Hanningfield Unlawfully Arrested by Essex Police

Last Friday the High Court held that Essex Police unlawfully arrested and detained Lord Hanningfield. It also held that they unlawfully searched his home.

Lord Hanningfield, 72, was arrested as part of an investigation into whether he had fraudulently abused his position of trust in relation to the expenses he claimed while leader of Essex County Council.

On the 14 September 2011, at 6.45 a.m., five officers arrived in unmarked police vehicles, woke the peer, arrested him and searched his bungalow without ever having obtained a warrant. He was then detained at Braintree Police Station until later that morning. Lord Hanningfield had only been released from prison a few days before, on 9 September 2011, having been imprisoned on 1 July 2011 following his conviction for false accounting in relation to his House of Lords expenses.

Lord Hanningfield argued that the arrest, search and detention were unlawful. As he was arrested without a warrant the Police and Criminal Evidence Act 1984 (section 24) says that the question of whether the arrest was lawful or not turned on if it was ‘necessary’ to arrest him to ‘allow the prompt and effective investigation’ of an offence or his conduct. It was agreed that if the arrest was unlawful then the search and detention would be unlawful also.

So what exactly does ‘necessary’ mean? Mr Justice Eady, the judge, explained that previous cases tell us that ‘necessary’ in this context means that we consider two things:

(a) did the officer making the arrest believe himself it was necessary to make the arrest, based on what he knew (a subjective question); and

(b) would a reasonable person, who knew the same facts as the officer, also believe that it was necessary to make the arrest? (an objective question)

Having defined ‘necessary’ the judge went on to consider the arguments on both sides. The police argued that it was necessary to make the arrest because Lord Hanningfield might have tried to conceal or destroy evidence relating to his expenses now that he had been released from prison. They also argued that he might seek to collude with other individuals who were suspects (none of whom were ever arrested). Finally they suggested he might fly into a temper when challenged on his council expenses. On the other hand, Lord Hanningfield argued that he had always been cooperative and would have been more than happy to attend a voluntary interview or could have been interviewed in prison. He further argued that he had known about the police investigation back in May 2011 and could therefore have destroyed or concealed evidence or colluded long before his imprisonment.

The judge agreed with Lord Hanningfield. He held that although the arresting officer believed it was necessary to make the arrest no reasonable person would conclude it was necessary to make the arrest at that time. The arrest at that time would not have had any impact on a prompt and effective investigation. ‘There were simply no solid grounds to suppose that [Lord Hanningfield] would suddenly start to hide or destroy evidence, or that he would make inappropriate contacts’. There was no reason not to follow the process to obtain a warrant. As the arrest was not necessary it was therefore unlawful. Since the arrest was unlawful it was held that the search and detention were also unlawful.

The sum of £3,500 was awarded to Lord Hanningfield, who has promised to donate the money to charity. Essex Police have said they are considering whether to appeal.

The judgment can be read here: http://www.bailii.org/ew/cases/EWHC/QB/2013/243.html

Discussion

I certainly hope that Essex Police do not waste any further taxpayer’s money appealing this decision. It is clear to me that it was not necessary to arrest Lord Hanningfield at the moment he was. There was ample opportunity to interview him in prison. Alternatively, a voluntary interview could have been requested. What are your thoughts? Was an arrest necessary at that time?