If bail reforms blown off track, injustice must surely follow

Solicitors' leaders today urged government to keep urgent bail reforms on track despite the COVID-19 pandemic.

Last year an investigation by Newsnight found that 93,000 suspects in the most serious of crimes had been released under investigation (RUI) in the wake of changes to pre-charge bail made in 2017.

Meanwhile, a review by the Law Society of England and Wales revealed many suspects and victims were left waiting for months or even years as a result – in one police authority, cases took an average of 228 days to reach a charging decision.

In the wake of the vocal public backlash, the government launched a consultation on pre-charge bail reform earlier this year.

In response to the consultation, Simon Davis, Law Society president said:

“Last year we warned that a major scandal was brewing as we revealed that a record number of suspects released under investigation without conditions or time limits.

“Consistent pressure upon resources has historically made it difficult for the police to complete investigations within the 28-day limit set by the 2017 pre-charge bail reforms. In this context, it is easy to understand how the use of RUI became so widespread.

“It nevertheless led to an unsustainable situation in which the innocent accused are left under the cloud of suspicion for years, and victims of serious offences, such as rape and other violent crimes, are unable to seek closure – often living in fear of being confronted by the alleged perpetrator for many months or years.

“The government were right to respond with proposals for reform.”

Our consultation response includes recommendations to:

  1. Introduce greater strategic oversight to the investigative process. When seeking a decision to bail a suspect, investigating officers should be required to prepare an investigation plan which is then placed on the custody record – detailing tasks to be completed against the progress of the investigation.
  2. Include fixed timescales for cases where the suspect is released under investigation in primary legislation, in the same way as the pre-charge bail periods are. We propose an approximate 56 days’ period authorised by a sergeant, with approval needed from a chief inspector or superintendent for an extension to six months. For an extension of up 12 months, approval from a magistrate should be needed.
  3. Charge suspects with a criminal offence arising from the behaviour said to breach bail conditions, so an offence of witness intimidation, attempting to pervert the course of justice, or a Protection from Harassment Act 1997 offence of harassment with threats of violence. The CPS should be asked to provide guidance to the police on seeking a charging decision using the threshold test, so that the police then have some leeway to gather evidence.

Davis continued:

“The 2017 Act sought to introduce greater efficiency to police investigations by limiting the use of pre-charge bail and setting deadlines. Lengthy and unfocused investigations are bad for suspects, victims and witnesses alike.

“In making changes we must avoid throwing the baby out with the bathwater by removing the presumption against bail entirely, and thus reverting to a situation where suspects are on bail for excessive lengths of time.

“If used appropriately, release under investigation can be a suitable alternative in those cases where onerous bail conditions are neither necessary nor proportionate.

“In the interests of swift, fair and efficient justice, these reforms must be kept on track – even among the fallout caused by the current pandemic. There is already a significant backlog of court cases awaiting trial – another bottleneck at the investigative stage will risk more crime falling through the cracks of investigation and prosecution.”

Notes to editors

1) Details of the government consultation are available from GOV.UK.

2) Our research into the use of release under investigation found the following:

  1. The use of release under investigation (RUI) has increased dramatically since changes were placed on the use of bail in 2017
  2. The number of suspects released on bail has decreased dramatically – appearing to have been replaced almost entirely by RUI in some police authorities. In Thames Valley, the number released on bail between 2016 and 2017 was 13,768. But in 2017/18 this fell to 379, as the number released under investigation rose to 11,053

3) The average length of investigation is much longer than police bail. In Surrey, there was an average of 228 days. There’s no limit on how long investigations can last – and no requirement to give updates if or when the case will progress. This can cause much anxiety and distress for those involved – including victims.

View the full research

4) The Law Society’s response to the consultation is available on request.

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

Press office contact: Liam McCafferty | 020 8049 4028