Policing and Criminal Justice Bill must do more to reduce uncertainty for suspects and victims.
Something strange is happening at police stations. The arrest rate, though not the number of investigations, is dropping. Those suspected of crime are now often invited to attend for interview. This seems good for suspects as an arrest has to be disclosed, for instance, on many visa application forms. Those who attend as ‘volunteers’ don’t have to answer questions but they will attend for interview.
The increased rate of voluntary interviews has been an objective for many years but police culture was deeply resistant. Police and Criminal Evidence Act 1984 Code G only had a limited effect. So what has changed? The answer is in the Policing and Criminal Justice Bill now before parliament.
This will place time limits on the length of police bail. In most cases this will be 28 days, with a senior police officer being able to extend that limit to three months. Thereafter, only the courts will be able to allow a suspect to remain on bail. In 2014, in the Metropolitan Police area, over 4,000 people were on bail for over six months.
But there is an easy way round this control, also included in the bill. This is a presumption that most suspects will not be placed on bail and, even if initially arrested, will be released without bail while the investigation continues.
What seems a very positive reform will thereby create a deeply unsatisfactory position. Many will know that they are subject to a police inquiry but have no idea when it will end. Some will be suspended from work for this undefined period. The anxieties caused were summed up in a recent report by Justice on long and complex trials: ‘Waiting until the investigation is actually complete risks an unacceptable delay for both victim and suspect. People can be kept under suspicion for very lengthy periods. This causes significant worry and uncertainty for both suspects and victims, which can be unfair, unreasonable and very hard to bear. Suspects may be treated as “guilty by association” by the public, and may never in fact be charged.’
The remedy will require careful scrutiny as the bill passes through parliament. There must be the possibility of a senior court reviewing and having power – in the absence of new evidence – to end a criminal investigation that has gone on for too long. Historically, the courts have been reluctant to become involved at this stage of an inquiry, but they already have a jurisdiction to review pre-charge detention and pre-charge bail conditions.
Applications to quash search warrants are commonplace. The bill itself introduces procedures for the courts to review the length of bail and to hear sensitive material in the absence of the suspect. It is only fair that they should also be able to bring to an end, for those who are not on bail, the overrunning and disproportionate investigation.
Justice proposed two mechanisms to resolve the problem: ‘An extendable time limit of 12 months should apply to all investigations from the point of the first interview as a suspect. An officer, independent of the investigation and of at least detective chief superintendent rank, should conduct an internal review of the investigation and at that point determine whether it should continue – identifying any necessary refocus and priorities to be progressed. The officer should have a power to extend the investigation.’
Second, ‘the suspect should have the right to apply to the local resident judge to discontinue the investigation… We consider that the power to discontinue should apply from 12 months after first interview. Such a procedure would enable independent judicial consideration of the issues in the case. It should also lead to investigators communicating better with suspects about the ongoing inquiry, which would in turn avert unnecessary applications.’
It is to be hoped that such matters will be raised as the bill receives detailed consideration.
Anthony Edwards is a solicitor at TV Edwards. He was a member of the Justice working party on long and complex trials