POLICE BAIL AND IT’S IMPLICATIONS

Guest post on Sabine

October 23, 2015 by Hampstead Research

Thanks to Tim Veater for this:

It should be noted that Sabine McNeill was arrested – rather than following a previously agreed arrangement to visit the police station with her solicitor for an informal interview. It was carried out physically, with force and contrary to her protestations. Given (as far as we are aware) her previous good character, absence of any criminal or violent past, her age, sex and health, an absence of any verbal or written intention to commit a criminal offence, her known and permanent place of residence and her already agreed willingness to be interviewed, how could this police behaviour be justified?

To say the very least, it appears to have been unnecessary and heavy handed.

Then we have the features of the police bail. Please note this is POLICE bail, not that issued by a court of law – in this case a Magistrates Court. It is not only the fact that the bail requires a reappearance – which as the the article below points out is really unnecessary, as the police have, in addition to their informal procedures, a comprehensive and recently broadened, power of arrest – but the CONDITIONS that are attached to it and the further psychological and practical consequences, that are the issue.

Why for example was it considered necessary to impose on an elderly woman with mobility problems, the condition to visit a police station no less than three times per week, when her passport had already been surrendered? Either in relation to her risk of absconding or committing a crime, or even in respect of past alleged behaviour, this condition appears little more than intended to be an inconvenience and vindictive.

Apparently this specific condition has now been relaxed by arrangement, although wider implications still exist on the advice of her solicitor, insofar she is being prevented from attending an important conference in person, as it might undermine her ‘difficult mobility’ argument, used to relax the police station visits. Can this be right? Clearly the fact that she is subject to the largely unnecessary bail conditions, has a much more profound effect on her basic freedoms of free speech and movement. Presumably that is precisely the police intention. She appears to have been placed in a sort of legal limbo to impose a psychological limitation on her law-abiding activities.

All this, it should be noted, without ever having the opportunity to test the alleged crime(s) giving rise to the bail conditions in a court of law – in this case a Magistrates Court – which in any event are vociferously denied.

This imposes an onerous obligation on the police to ensure that renewing the bail (potentially ad infinitum) and its conditions are proportional. Proportionality is also a factor to be applied in relation to M/s McNeill’s actions in support of revealing alleged serious crimes and protecting children from them, a wholly laudable and lawful public service, which you would think the police would be anxious to protect.

Proportionality also, between the behaviour of M/s McNeill and that of opposition forces. Anonymous internet avatars, traced to those closely involved in the case, have been engaged in targeted extreme abuse and veiled threat harassment of M/s McNeill and others. The recent case of criminal damage to her property, indicates the threats are not purely hypothetical.

We may reasonably ask, what have the Barnett police done to pursue this far more serious criminal behaviour?

When considered in the round, one cannot help wondering, in the matter of right and wrong, of upholding the law or undermining it, which side the Barnett police are on?

RECENT ARTICLES ON THE SUBJECT OF POLICE BAIL

There is this from the Mail in March – an election pledge by the Conservatives. Clearly promises take a long time to put into practise:

“Theresa May vows to end scandal of police ‘parking’ suspects on bail for years with new 28 day limit

Police will not be allowed to keep people on bail any longer than 28 days
A senior-ranking officer will have to sign off applications for extension
The proposal was announced by the Home Secretary Theresa May today
Comes after radio DJ Paul Gambaccini attacked abuse of pre-charge bail
He was ‘parked’ on bail for 12 months only to be released without charge
The ordeal cost him £200,000 in earnings because he was suspended

By IAN DRURY, HOME AFFAIRS CORRESPONDENT FOR THE DAILY MAIL
PUBLISHED: 17:45, 23 March 2015 | UPDATED: 01:11, 24 March 2015”

Read more: http://www.dailymail.co.uk/news/article-3008049/Theresa-vows-end-scandal-police-parking-suspects-bail-years-cleared-DJ-Paul-Gambaccini-revealed-ordeal.html#ixzz3pO3ty1G7

Then there is this challenge by Jemma Sherwood-Roberts of ‘Corker Binning’ which is well worth reading:

“Over time, it appears to have become accepted custom that where there is as yet insufficient evidence to charge an accused but it is necessary to continue to investigate without having to be held in custody (further to s 37(2)  of the Police and Crime Evidence Act 1984 (‘PACE’)) that police bail will be granted (sometimes with onerous conditions). 

However, section 37 of PACE clearly sets out the duty on a custody officer to consider whether there is sufficient evidence to charge or if the officer “determines that he does not have such evidence before him” to decide to release the person arrested “either on bail or without bail” unless he considers that there are reasonable grounds to authorise the person to be kept in police detention.

“Are defence solicitors all too ready to accept police bail? Should we be asking custody officers to exercise their power to release our clients without charge and without bail (pursuant to s37(7)(c) PACE)?

“Theresa May MP has recently announced a Home Office consultation on statutory time limits for police bail, stating that it “cannot be right that people can spend months or even years on pre-charge bail with no oversight”.  A statutory time limit may well address some of the issues criticised today; it may put pressure on police to investigate things as expeditiously as possible and it would no doubt provide clients with more certainty, rather than dealing with seemingly indefinite investigations (although it should be noted, as ever, the potential proposed opportunity to extend any time limit in “exceptional circumstances”).  But should we also be considering why clients should be on police bail at all?

“All too frequently, unconditional bail is imposed which simply requires a person to attend a police station at a later date.  It is difficult to see why such bail is required.  The police are more than able to re-arrest a person (or arrange a voluntary attendance), should later evidence come to light which requires a further interview or provides sufficient evidence to charge.   It cannot be said that the decision to release a client without bail is to suggest that the case against them has been dropped.  Section 37(8) PACE confirms that where a person is released with or without bail and at the time of that release “a decision whether he should be prosecuted for the offence for which he was arrested has not been taken” then they should so inform them.

“It seems that police bail (with or without conditions) has become an established procedure, one that defence solicitors readily accept as a lesser evil of their client being remanded into custody. But let’s consider that further. Pre – charge bail is not an alternative to custody, it is an alternative to unconditional release.  It is correct that PACE allows a maximum time of detention of 24 hours (s 41 PACE) which can be extended to 36 hours with further authorisation (s 42 PACE).  However, if a custody officer has already informed you that your client should be released on police bail it is difficult to see on what grounds their ongoing detention could be authorised.  Section 37(2) and 42(1) of PACE highlight that ongoing police detention can only be authorised when there are “reasonable grounds” to do so; where it is “necessary to preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning”. 

However, if the custody officer has already determined that this is not required, and therefore he is suitable for police bail, then how can it be said that such reasonable grounds exist?  So if a custody officer responds to a request for the client to be released without bail what choice does the custody officer have?  It seems that any ongoing police detention would be unlawful and, for clients willing to sit it out, it seems an emergency application could be made to the High Court for a writ of habeas corpus to challenge the lawfulness of their detention.  A brave move indeed but it may result in them being released without bail, or without onerous conditions, which for clients now on bail for over a year may well be worth the risk.”

Corker Binning – Jemma Sherwood-Roberts
http://www.lexology.com/library/detail.aspx?g=4e2d377c-0c65-4e64-95f4-1b3c11df8419