The Tuesday Truth 8th March 2016

PUBLISHED March 8, 2016

On Monday 7th March MPs debated limiting the amount of time a suspect can spend on police bail whilst police investigate the allegations.
We all have experience of clients being on bail for over a year in relation to serious allegations whilst their lives are on hold. This has become particularly common in sex allegations which for everyone involved in a case particularly the complainants is unacceptable.
Simon Warr whose story appears in the first edition of the excellent Justice Gap magazine “Proof” was a teacher accused of sexual offences alleged to have taken places 30 years before.
He was on bail for two years before a jury acquitted him inside an hour. He lost his job, reputation and community. Everything belonging to him was seized in a dawn raid, effectively his entire identity and history was scrutinised over a very long period of time. He is one of many examples of this type of case. He was brave enough to go public about his experiences but many of those acquitted never recover from the slur of the accusation. The reach of the internet and social media meaning that the story never totally disappears.
My concern is that the introduction of any limit on bail will not really cure the problem of individuals on bail for many months whilst the police carry out an investigation. The Paul Gambaccini case has been highlighted and indeed he gave us an insight into the experience of prolonged suspicion when he spoke at a fascinating LCCSA conference on this subject last year.
If suspects can only remain on police bail for only 28 days how will the investigating bodies get round that limit? Well it seems very easy to me. At the end of the 28 day period if the police do not have sufficient evidence they will end the investigation by taking no further action. However they would be entitled to rearrest if “new” evidence emerged so why not simply take that course of action? The problem with that approach is that an investigation rumbling on in the background of a person’s life will continue to cast a shadow over those accused and in some respects they will be even more in the dark without at least the bail to return dates to provide some kind of natural reference point.
Alternatively the police could take no further action and just issue a summons if they obtain additional material. Therefore rearrest and proceeding by summons would get round any bail time limit thus rendering the introduction of such as fairly meaningless.
Consequently one wonders whether this discussion is the appropriate one. The real issue is whether it is fair and appropriate for someone to remain under investigation and for how long does it remain fair and appropriate?
In many serious cases it can take the police an age to assemble the evidence in cases, in particular we hear of individuals charged with murders months or years after the death. Obviously it is right that such investigations and prosecutions go ahead and that the prosecution bodies have sufficient time and resources to properly perform their tasks.
One of the peculiar and obvious debates revolves around the role of the police in these investigations. Simon Warr says that the police must stop approaching these enquiries in such an adversarial manner but should adopt a more balanced impartial approach. I am sure all of us solicitors have sat in police interviews where the police have indicated their job is to investigate, they need to hear the suspect’s side of the story. Indeed under the CPIA the police are under a duty to investigate any line of defence raised by the suspect. Is that really not happening? Are the police lying when they say they want to hear both sides of the story? Have I as a legal adviser been operating under a false pretence when giving advice?
One option being discussed is to introduce judicial supervision into investigations. This would certainly represent some form of accountability. However one of the real issues here that cannot be dodged is resources. Would investigations be quicker if the police had greater resources and had not been subject to such substantial cuts? Will resources be diverted if Judges are given this extra responsibility to adjudicate on the progress of investigations? How will their adjudication remain transparent? What would be the appropriate criteria? How would the judiciary feel about this additional role and its perceived effect on their independence? Presumably merit and expedition would be two paramount factors. Would this be the first step in moving towards an inquisitorial system where Judges lead investigations? Adjusting the rules on anonymity of suspects might mitigate against the effects of being accused of serious offences and being on bail for lengthy periods.
I have raised many questions but have not provided many answers. I do know that when measuring how quickly a case is dealt with the MOJ prefer to calculate the time as being from charge to conclusion conveniently ignoring the months spent on police bail prior to charge. So on the occasions that the client is charged having been on bail for months often for no apparent reason it is frustrating when you appear before a tribunal on their behalf a few weeks after charge and the tribunal is concerned at any delay in finalising pleas and identifying the key issues.
The fact though that these issues are being discussed in Parliament must be a positive step and all of us working at the coalface can contribute to this very important discussion.

Authored by Paul Harris