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Living in limbo – police bail yesterday and RUI today

Penelope Gibbs
10 Nov 2019

In its last days, this government announced a review of its policy on pre-charge bail. This review was prompted by two powerful forces – lawyers whose clients were living in limbo and the activist lawyers at the Centre for Women’s Justice, who were worried about victims’ safety. The concerns of the lobbyists are different, but they both want the same outcome – reform of legislation brought in two and a half years ago.

This legislation guiding pre-charge police bail was itself the result of lobbying five years ago. Before then police could bail people more easily before charging them. Bail meant that suspects had to be contactable by the police and some suspects had further restrictions imposed on them. These suspects lived with the stress of waiting to find out whether they would be charged, sometimes for months. This limbo had been harming suspects for decades, but the injustice only came to light when journalists were caught up in the hacking scandal. Some of the journalists involved had been on police bail and protested that their lives had been put on hold for no good reason. They persuaded the well connected Westbourne Communications PR firm to launch a campaign for a change to the law on pre-charge bail. The “justice delayed, justice denied” campaign called for time restrictions on pre-charge bail. Teresa May as Home Secretary was sympathetic and a consultation on reform published in double quick time.

The police were, not surprisingly, opposed to the changes. The proposed changes fettered the police’s ability to keep tabs on people while they were investigated.

The reforms called for by the “justice delayed, justice denied” campaigners, were passed by parliament pretty smoothly. The new guidance still allowed the police to bail people, but bail became more bureaucratic to use, and time limits were stricter – bail ran out after 28 days.  Police could instead release suspects under investigation (RUI). RUI places no restrictions on suspects, but has no time limits. And there is no legal aid available to pay lawyers whose clients are subject to RUI.

The new reforms to police bail were not piloted, but rolled out nationwide. And the results have not been as the government predicted, though they do confirm the doubts of some opponents. The use of police bail has plummeted. and thousands of suspects have been released under investigation for months on end. They too have a cloud hanging over them, just fewer restrictions than those on police bail. And lawyers lose contact with clients on RUI whom they want to help.

The new situation satisfies no-one. Police want to be able to use bail more easily, people on RUI live in limbo, and victims’ groups worry that victims’ safety is being compromised because alleged perpetrators are free to re-offend. A man on RUI apparently murdered his ex-partner. The Centre for Women’s Justice has launched a super complaint against the police for their failure to use protective measures to protect women and girls who are victims of violence. One of their complaints is of under-use of police bail:

“The biggest change is reported by Rape Crisis centres. In the majority of rape cases the parties know each other, and stranger rapes are rarer. One sexual violence service reports that in a sample of 120 current active cases, only approximately five are on bail. Another provides a snapshot of an adult victims’ support worker caseload: 29 cases no bail, 3 bail, 5 unknown, and a children and young people’s support worker caseload: 17 no bail, 3 bail for 28 days then lifted, 3 in custody. Others reported that a “huge proportion” have no bail or that “routinely” bail is not used”.

Yesterday I was at the Criminal Law Solicitors’ Association conference where I heard some hair-raising stories about RUI – of some very serious offences where there was good evidence to charge, but the suspect was still released under investigation for many months.

It’s good that the government has announced a review since there is clearly a problem with the way police bail/RUI is working: “The Home Office will consider updating the rules to better support police officers investigating crimes and ensure that pre-charge bail is being used where most appropriate – including where conditions are needed to protect victims and witnesses, such as in domestic abuse cases”.

I wonder if the learning from this is partly about the policy making process itself. Before the changes implemented in April 2017 police bail led to the suffering of (often innocent) suspects. People were placed in an even worse kind of limbo than those now subject to RUI. Paul Gambaccini was on police bail for twelve months suspected of, but never charged with, child sexual abuse. Conditions attached to that bail prevented him having unsupervised contact with children and saw him having to surrender both his UK and U.S. passports. The BBC stopped employing or paying him, and he was shunned by acquaintances and friends.

But maybe the new bail policy was developed too quickly, with too little consultation and with insufficient modelling of the consequences. There was a formal public consultation on the proposals but many police didn’t accept the need for change. I hope the new review doesn’t simply reverse the 2017 reforms. Current concerns focus on public protection. But there seems to be no data to prove that suspects on police bail are “safer” than those on RUI. Police bail may sound more reassuring for alleged victims, but in reality it gives them little more actual protection from someone intent on harming them.

The key problem with RUI seems to be that it has no time limits and thus leaves both the alleged victim and alleged perpetrator in limbo for too long. Particularly given that many (most?) of those subject to RUI will never be charged. Investigation of some crime is just taking too long. If we found a way to curtail the length of investigations would the current objections recede?