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March 30, 2018

Police and court bail policy is a mess

On the face of it, the story broken by the BBC today is alarming – thousands of suspected rapists and murderers are loose on the streets. But the story misses out the crucial element. These people were loose on the street before police bail reforms and they have not been charged with any crime. If the police have evidence to charge on any crime, they will. If they don’t they can either subject the suspect to police bail or release them “under investigation”. Police bail merely involves reporting regularly to the police station so it doesn’t stop anybody committing another crime. Public protection is only marginally improved by police bail.

The obverse of the story (and arguably the more disturbing) is the overuse of police custody and of remand. If the police have enough evidence to charge you, and you meet certain pretty flexible criteria, the police can detain (imprison) you overnight in police cells. Thousand of children and adults are detained by the police for one or two nights, and most of defendants are released when they get to court. That they were imprisoned is in many cases unjust.

There is injustice too in the huge number of people who transfer from police remand to remand in our inhuman and inhumane prisons. The BBC report focuses on people suspected of serious crimes. Last year magistrates and district judges imprisoned 11,000 people who were protesting their innocence of summary (less serious) offences, most of whom are released at the end of their trial, either acquitted or getting a community sentence. 15% of those remanded at any one time are accused of theft, 17% of drug offences.

The Secret Barrister’s new book “Stories of the law and how it’s broken” corroborates Transform Justice’s recent report on the overuse of remand. He/she (the anonymous barrister) confirms one of the key problems with remand – that the hearings do not get the resources they need given that someone’s liberty is at stake. “An observer might suppose that bail apps carry the lowest consequence of the court list: up to half a dozen hearings are squeezed into the top of the daily list, to be rattled through in succession at 10 am before the court starts its proper meaningful business…And this all contributes to a feeling of remoteness, of insubstantiality, which, I sometimes think, can make it easy to forget the importance of what we’re dealing with. I am guilty of it. I know from experience that others are. Often, particularly when prosecuting, you will be instructed on the bail application alone, and will never see the case again. The defendant is just a transient name, never to be matched to a face [since bail applications are often heard in a closed court without the defendant present]…It’s easy to understand how alienation and frustration can set in”.

Conveyor belt justice, where the defendant is excluded from a hearing about their own liberty or where they are forced to appear “in court” on video after a five minute pre-hearing legal consultation, will slowly undermine trust in the system and in lawyers themselves. The Secret Barrister’s book is really worth reading, if depressing about the state of the justice system. I just hope she/he and I are not simply seen as Cassandras.