Do the Police abuse Bail? How they play 'cat and mouse' with...

Do the Police abuse Bail? How they play 'cat and mouse' with a suspect

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Introduction

Neil Wallis, writing in the Guardian on 28th May 2013, explained how he was on bail in relation to the phone hacking investigation for nearly 20 months before a decision was made that he was not going to be charged. He highlighted the problem that there is no time limit on police bail, which means that thousands of people have been on bail for more than six months and many for years.

 

What is the law?

After someone has been arrested and detained at a police station, there is something called the ‘PACE Clock’. This limits the amount of time that someone can be held in custody. From the moment that they are detained, the PACE Clock starts to run.

The general rule is that no-one can be detained for more than 24 hours without being charged or released (s41 PACE). There are exceptions for an indictable offence, but these are tightly controlled and need the authority of a high ranking police officer (s42) which can extend the time period to 36 hours provided that the detention is “necessary to secure or preserve evidence” and the “investigation is being conducted diligently and expeditiously“.

At that point, the police can apply to a Magistrates’ Court for a Warrant of Further Detention (s43). This can extend the period for up to a further 36 hours and the test is effectively the same as after 24 hours. The police can apply for further period after that up, up to a maximum limit of 96 hours.

The kicker is s47 PACE. This provides that during their period of detention, someone can be bailed off and this stops the Pace Clock. They will bailed to come back on a particular day. If they are detained the PACE Clock will restart, but if they are then bailed off again this stops the PACE Clock.

As an example, take someone who is arrested and detained for robbery, and held for 18 hours before being bailed for a month. A month later, they can be brought back in to custody and re-bailed, in theory for eternity.

There is no restriction on how long this can go on for (which is what Mr Wallis is campaigning about). Presumably at some point this will become unlawful (perhaps as a breach of the suspects human rights under Art 8 European Convention – private and family life), but if that is right, it will only be after a long period of time – we are talking years.

 

How can this be resolved?

It is clear that this can lead to injustice as the police keep people hanging around for years. It doesn’t lend itself to swift investigation.

Mr Wallis suggests a ‘PACE Calender’ – a period of time that someone can be kept on bail before the police have to seek the permission of a Court. This seems a very sensible suggestion.

It seems to us that to stop the potential oppressive use of police bail it would be sensible to have a requirement that if someone is bailed more than three months from the date of their first detention then this would have to be by application to the Court, as would further extensions on a month by month basis. Allied to that, there should be an outer time limit of, say, 2 years, beyond which no extensions can be granted.

 

Wasn’t this in the news a few years ago?

Yes, good memory. It was all to do with the case of Paul Hookway. For many years it had been assumed that this practice of ‘cat and mouse re-bailing’ was lawful. A District Judge in Manchester ruled that it was not, a decision upheld in the High Court by McCoombe J. This would have limited the time period to 96 hours from the time of first detention without any possibility of bailing and re-bailing.

This caused, as you can imagine, chaos in the police force. It also lead to the shortest piece of legislation in living memory – the Police (Detention and Bail) Act 2011. It has effectively one section that makes clear that the PACE Clock stops when someone is bailed and re-starts when they are detained.

There is a good discussion of it here.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

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