The tick tock of the PACE clock

Proposals for limits on police/pre-charge bail

In 2013, more than 57,000 people were subject to pre-charge bail, with over 3,100 of those remaining on bail for six months or more. One individual spent over three-and-a-half years on bail, before being released without charge. Recent high profile cases, such as Neil Wallis, Paul Gambaccini and Freddie Starr, who spent 19, 12 and 18 months on bail respectively, have led to concerns that pre-charge bail is increasingly being used by police as a substitute for prompt and proactive evidence gathering, with a ‘bail and see’ approach proliferating.

Section 47 of the amended Police and Criminal Evidence Act 1984 (PACE) provides that the police may detain a suspect for an initial 24-hour period, with a superintendent able to authorise an additional 12 hours in certain circumstances and further extensions available from a magistrates’ court up to a maximum of 96 hours.

If no decision is reached on whether to charge the suspect, the police may bail the individual to return to the police station at a later date. There is currently no restriction on the length of police bail or on the number of times the police are entitled to bail a suspect to return, so long as the total time spent by the suspect at the police station does not exceed the limits within section 47 of PACE (as detailed above).

Obligation to disclose details

Being on bail can often be extremely stressful for the person under investigation. This stress can be exacerbated by the fact that, at an early stage of the investigation, the police have no legal obligation to disclose the details of the alleged offence, or any of the underlying evidence, to the suspect. The interview questions will often be the best way of understanding the basis of the investigation, but these will rarely reveal the full scope or nature of the evidence against the suspect.

The conditions for those who are subject to pre-charge bail are set by the custody sergeant, with no oversight by the courts until a later date, if and when the suspect is charged. Bail conditions are by their nature restrictive, and the requirements imposed can be strict. Conditions can include a curfew specifying the hours when the person must be at their home; that the individual must live and sleep at a specified address; that the individual can be excluded from certain areas; or a condition prohibiting the person from contacting specified other individuals. A breach of these is likely to result in that person being remanded into custody (although the ‘PACE clock’ will then start ticking, and the police may be forced to charge or release the suspect).

Being on bail can impact significantly on
other areas of an individual’s life, such as their employment: for example, suspension from work pending a resolution of the police investigation or being unable to find work while the question mark over their offending remains. Other legal proceedings, such as family (for example, divorce or custody cases), may rely on the same material or evidence that forms part of the police investigation. Those court proceedings may be hampered pending the resolution of the police’s investigation.

Six-month time limit

The home secretary, Theresa May, has indicated that a Home Office consultation on police bail time limits will be held this year. This is not the first time the issue has been raised. In May 2013, the Law Society’s criminal law committee campaigned to install a 28-day statutory time limit on police bail and the College of Policing suggested the same in March 2014. In June 2014, the human rights organisation Liberty suggested a six-month time limit on pre-charge bail.

While the 28-day proposal has been criticised as unduly constraining and at odds with the practicalities of modern policing, Liberty’s six month proposal has been widely supported as more practical; it has even been supported by the British Transport police chief constable, Andy Trotter. Chris Eyre, chief constable of Nottinghamshire, recently cited the general increase in case complexity as warranting longer investigation time, as the average case can now involve “computer forensics, CCTV, telephony, using interpreters or gathering evidence across borders and jurisdictions.” However, it is widely believed that the use of ‘bail and see’  removes the incentive or the necessity for the police to investigate matters with any urgency, regardless of their complexity.

It remains to be seen what will come of the consultation, but it is clear that reform is needed to provide increased certainty for the individual and to promote prompt and proactive police investigations.

Imbalanced court hearings

Where a defendant is unaware, unrepresented and/or prevented from participating in a court hearing (an ex parte hearing), procedures must be in place to redress or correct the inevitable imbalance this creates.

Ex parte applicants (prosecuting or investigating authorities) are therefore required to understand and comply with a duty of candour and of full and frank disclosure, with further rigorous and critical analysis expected from the presiding judges or magistrates.

Recent case law has, however, highlighted authorities’ increasing failure to provide full and frank disclosure, with a lack of detail and supporting evidence in applications and a perception of judicial rubber-stamping of some requests. In response, the courts have reaffirmed the nature of the duty of candour, while repeating the warning that failure to comply can amount to serious misconduct.

Without notice hearings that involve search warrants and restraint orders represent some of the most stringent and serious measures that can be taken by the state against an individual. Search warrants are regularly described as a draconian power akin to a ‘nuclear weapon’ in the courts’ armoury, and even low-value cases where a restraint order is sought can result in considerable disruption to personal, commercial and third-party interests.

As a result, the applicant’s duty to give full assistance to the court requires them to wear a ‘defence hat’ and advance information on behalf of the defence that invariably militates against their own prosecutorial position. The applicant must also ensure the complete background and basis upon which the relief is sought is fully aired at the initial hearing. The short-notice nature of ex parte applications further requires judicial diligence in ensuring that appropriate time is set aside to consider the substance of the application; these should not be treated as routine matters forced into busy listings.

In Ashford & Ors v Southampton City Council [2014] EWCA Crim 1244, the applicants appealed a judge’s refusal to discharge and vary ex parte restraining orders relating to assets in excess of £1m, made under section 41 of the Proceeds of Crime Act 2002 (POCA).

Sufficient evidence

The applications to discharge centred on the lack of sufficient evidence to find reasonable cause to believe the third and fourth defendant companies had benefited from criminal conduct under section 40(2)(b) POCA. Although the judge acknowledged the paucity of the evidence at the review hearing, he nonetheless went on to accept the investigators assertions of ‘reasonable cause’ without sight of the underlying evidential basis. The Court of Appeal subsequently discharged the orders and described the issuing of the restraint orders as yet “another example of the failure of investigating authorities and of the court in this regard” (paragraph 32), highlighting the insufficient care often given to the original presentation and hearing of ex parte matters.

In the case of R (on the application of Mills and another) v Sussex Police and another [2014] EWHC 2523 (Admin), the Divisional Court allowed an application setting aside a search warrant on the basis of material non-disclosure at the original ex parte hearing. On appeal, the court found the overview provided to the court at the original hearing amounted to material non-disclosure, though not positive misrepresentation. The non-disclosure was such as to cast serious doubts on whether the warrant would have been issued had the applicant fulfilled their duties to the court. The court went on to modify the test for when a warrant can be set aside, obiter in R (Rawlinson & Hunter Trustees) v Central Criminal Court [2012] EWHC 2254 (Admin), and rejected the view that a warrant could only be set aside where the court was satisfied a different decision would have been reached on full disclosure.

In allowing the application, the court determined that a warrant may be set aside where there had been a material non-disclosure which might well have led the judge to issue a warrant which, had there been full candour, he would have refused to issue. The lower threshold is indicative of the courts seeking to incentivise ex parte applicants to fulfil their disclosure obligations, with a failure to do so now significantly increasing the risk that a warrant could be set aside at the review hearing.

In Ashford, the court concluded by repeating the observations of Lord Toulson SCJ in Barnes v The Eastenders Group and another [2014] UKSC 26 (at paragraphs 118 to 125, headed ‘Lessons for the future’). Such lessons include listing matters before a judge with sufficient time to prepare and conduct the hearing, ensuring that the applicant’s duty of candour is fully understood and complied with, and fostering a diligent and meticulous approach to ex parte applications by prosecutors.

Given the potential harm that such orders can cause when granted on tenuous or speculative evidence, it is essential that these lessons should be followed in practice, and the court’s new proactive stance in tackling these issues is welcome.

Pilot for the replacement of cautions

The justice secretary, Chris Grayling, has described a caution as “little more than a warning” and said that “it is time we put an end to this country’s cautions culture”.

On Monday 3 November 2014, the option of issuing a police caution and some other out-of-court disposals was withdrawn from the police in Staffordshire, West Yorkshire and Leicestershire, as part of a pilot project to review their propriety and necessity.

A caution is a formal warning given to a person who has admitted committing an offence. Although not technically classed as a conviction (as only the courts can convict an individual), it can be taken into consideration by the courts if the person is convicted of a further offence. Over 235,000 cautions were issued in England and Wales last year.

There are currently several types of cautions: the most common are simple and conditional cautions. Simple cautions are formal warnings, recorded on an individual’s record. A conditional cautionhas additional, specific conditions attached that the individual must satisfy, for example, attending a course aimed at targeting their offending behaviour.

Some media articles have equated penalty notices for disorders (PND) and community resolutions as cautions, but as they require either the payment of a fixed fine or some form of restorative justice (with input from the victim) respectively, they arguably go beyond what is commonly understood to be a caution. Cautions and other out-of-court disposals, such as those mentioned above and Cannabis/Khat warnings have all been withdrawn as part of the pilot scheme.

The pilot scheme has introduced two new notices, to replace cautions and other out-of-court disposals: ‘statutory community resolution’ and ‘suspended prosecution’ notices. 

The new statutory community resolution will deal with minor offences for first-time offenders. Like the existing community resolutions it replaces, the new statutory community resolution allows victims to have a say in how they want an offender to be dealt with. It could require the individual to give a verbal or written apology to the victim or to make reparations.

The new suspended prosecution notices, to be used in more serious cases, will, like existing conditional cautions and PNDs, allow the police to attach conditions to the caution or notice, such as fining an offender or requiring them to attend a rehabilitation course.

In effect, the most notable change that has resulted from the pilot scheme is the removal of the simple caution – the other disposals are being adapted into new alternatives.

The new notices and the ‘old/existing’ disposals, other than simple cautions, all require additional police and, possibly, court and probation oversight. One reason that simple cautions were first implemented was to allow the police more time to deal with serious crimes and to reduce the amount of time police officers spent completing paperwork and attending court, while simultaneously reducing the burden on the courts. As well as the reduced time burdens, there was also the benefit of the reduced costs for the police and the courts in dealing with matters, which could be dealt with by way of simple caution. It is unclear where the additional funding for these new onerous notices will come from, but considering that last year there were over 235,000 cautions, the removal of these is likely to have a significant impact on both the police’s time and purse, and potentially further burden the court system.SJ