, April 10, 2017
On 3 April 2017 parts of the Policing and Crime Act 2017 (“the Act”) came into force aimed at reforming pre-charge bail. These reforms are reported in the press as a 28 day limit on how long a suspect can be kept on police bail. We examine what effect these reforms are likely to have, in particular on cases which lately have taken months if not years to come to a charging decision: Frauds.
The position before the Act was that a suspect could effectively be subjected to police bail (with or without sometimes extremely onerous conditions) for an indefinite period, so long as some line of enquiry was being pursued by the police (or the relevant investigating agency), or the Crown Prosecution Service (“CPS”) was considering the case. Very often this involves waiting for laboratories to analyse mobile phones or banks to produce bank statements, which can take weeks to months, with little incentive for the police to hurry matters along. So what has changed?
The Act states that the initial bail period will be 28 days. This is immediately qualified however by setting this period at 3 months for cases being investigated by the Serious Fraud Office (“SFO”). For non-SFO cases, the 28 day period may be extended to 3 months by a police officer of superintendent rank or above where certain conditions are met. These conditions are not a particularly high bar to jump, mainly being that the police need further time to investigate and are doing so diligently and expeditiously. We cannot envisage many scenarios in which a police superintendent will not agree with officers who say they need more time and are working as quickly as they can.
Before this initial bail period has expired, application may be made to a Magistrates’ Court in order to secure a further extension. The magistrates must satisfy themselves that the relevant conditions to keep the suspect on police bail continue to be met. There is no limit to the number of times a magistrate may continue to periodically renew bail. It remains to be seen how robust magistrates will be in scrutinising police applications for more time.
Crucially for fraud investigators, there are provisions which allow the initial bail period in cases designated as ‘exceptionally complex’ to be set at 6 months. There is no definition of what an ‘exceptionally complex’ case is. The decision rests with a senior person acting on behalf of the CPS, the SFO or the Financial Conduct Authority (“FCA”) whichever relevant.
A further blow to the new time limits comes in the form of provisions which appear to stop the clock whilst the CPS are considering the file. Cases are built by investigators gathering evidence and submitting their work to the CPS, who then consider the file and respond with advice on how to take the case forward. It appears then that only the police and not their lawyers are subject to the new time limits.
So who are these reforms good for?
These reforms are aimed at appeasing those suspects who have been subjected to police bail for periods of months or years before having the case dropped against them. The most high profile cases in this category are those accused of historical sexual offences. But suspects subjected to fraud investigations also fall into this category. However, in our view these reforms do little if anything to create any certainty for anyone subject to a serious criminal investigation.
If a case is complex (or at least ‘designated’ as such) – which the majority of fraud cases will be considered to be – the initial bail period will be 6 months (not the headline 28 days). After that, magistrates will be under pressure to grant further time for the suspect to be kept on bail whilst the investigation continues. It will take brave magistrates to fly in the face of fraud investigators asking for more time so that they can analyse the work of third parties like laboratories or banks who will largely be out of their control. On this view, we see very little changing for suspects in fraud investigations.
In any case, let us consider the effect on someone who is initially arrested but who is released from bail either because the time limits expire or a magistrate refuses to grant the police an extension. Does bail lapsing in this way mean the suspect is out of danger? No. Nothing in the Act prevents an investigation from continuing and for the case to be resurrected if further evidence comes to light. We note that this is exactly the same position suspects were in before the Act.