Examination of Witnesses (Questions 1
- 19)
TUESDAY 5 NOVEMBER 2002
MR IAN
BLAIR AND
MR JOHN
BURBECK
Chairman
1. Good morning, gentlemen, and apologies for
keeping you waiting. As you know, we are attempting a little pre-legislative
scrutiny of the Criminal Justice and Sentencing Bill, which is
still only a gleam in the Home Secretary's eye. One of the difficulties
is that the window between publication and second reading is a
very narrow one, and therefore we are having to proceed on the
basis that we have an idea of what some of the main issues are,
but we have not actually seen the Bill. We appreciate it is as
difficult for you as it is for us. In an ideal world—which
I hope to live long enough to see—bills will be published
well in advance and then we could take evidence from interested
parties before they are set in stone. Who knows, the quality of
legislation both from the Government's point of view and everybody
else's will be better, but we are not in an ideal world at the
moment and that is why we have to move slightly in the dark. Can
I just ask you a general question, first of all, about this Bill:
what is the problem that needs fixing? Mr Blair?
(Mr Blair) We think it is about inclusivity
of evidence. A number of the provisions that are being discussed
are around what I would describe as treating the juror as adults,
giving them the maximum amount of information and then allowing
them to choose and put weight as they see properly on that. Obviously,
the classic issue here is about previous convictions. We feel
that if the jury is the light by which freedom shines, we had
better make sure it has got all the light available to it. That,
I think, will be our major issue. I think it is also fair to say,
in terms of the whole Home Affairs Select Committee, the position
both of the Met and of ACPO is that criminal justice reform is
only partially legislative. There is a huge amount of work to
do which is already well under way about modernising the way in
which different agencies work together. Certainly the Street Crime
Initiative has shown us a holistic picture of criminal justice
and a lot of this is possible to fix, I think, without legislation;
but some of the legislation is very important to it.
2. Mr Burbeck, do you want to add to that?
(Mr Burbeck) Yes, I very much support what Ian Blair
said and would wish to add that the police service sees a deterioration
in confidence in the criminal justice system, and that is across
all parts of the community. The impact of that is that witnesses
and victims will not come forward. As a result of that we have
a downward spiral of performance of the whole system. It is with
a desire to improve the confidence in the criminal justice system
and probably in order to achieve that, as we see it, the only
way is to alter the balance slightly. The police service has no
wish to reduce the rights of the defendants, but there is a desire
to improve the rights and conditions and support for victims and
witnesses.
3. Most of our constituents are not concerned
about the fact that complex fraud trials sometimes go belly up,
but about the amounts of low level criminality and robbery that
plague their lives. To what extent will this Bill address that?
(Mr Burbeck) In order to address low level criminality—what
I call bullying in communities, that is the reality—we have
to achieve two things. The first thing is that you need to apply
sufficient controls to the offender—the defendant—and
give plenty of support and encouragement to victims and witnesses
to come forward. There is a great reluctance in communities for
them to come forward and first of all report, and secondly give
evidence against these individuals who intimidate them and who
make their lives hell in local communities.
4. How will this Bill address that, as you understand
it?
(Mr Burbeck) The first thing we would want to see
are extra pre-charge conditions where we can take offenders and,
before we have the evidence for a charge, we can arrest them;
then proposals to be able to put bail conditions on them not to
intimidate or approach victims or witnesses, perhaps not to go
to particular parts of communities, would help to create a situation
where we could obtain evidence and witnesses from victims and
prepare a full case before we charge.
5. Any other examples? Can we just touch on
them generally, at the moment.
(Mr Burbeck) Rules of evidence. We want greater inclusivity
of rules of evidence.
Mr Singh
6. I really cannot understand—I am going
to talk about bail conditions pre-charge—why the police
should have the power to impose bail and conditions when they
do not have sufficient evidence to charge a suspect. I cannot
understand the logic there.
(Mr Burbeck) Under the Human Rights Article 5.1c (as
I understand it) there is authority to detain. In other words,
it is perceived to be compatible with human rights to detain a
person while investigations are taking place. It is the police
case that bail is less restrictive than detention and therefore
if detention is compatible with human rights, so should bail be.
Why would we want bail prior to charge? At the moment, if we have
an offender perhaps for violence in the local community or perhaps
a suspect for a very serious offence—such as terrorism or
a child abduction—we may well have sufficient evidence to
arrest but we might be in a position where there is insufficient
evidence to charge or, particularly, insufficient evidence to
prefer an appropriate charge. We may be waiting. We may be waiting
for forensic evidence; we may be waiting for an unconscious victim
to recover. At the moment the police service has two choices:
we do nothing, we allow the offender to continue as a free individual
until we get this extra evidence so that within a reasonable time
of arrest (ie 24 or 36 hours) we are fairly confident we can prefer
a charge. So we allow this individual—he may be a violent
person or maybe a terrorist or likely to abscond—to go free.
The other choice is that we arrest because we are concerned about
leaving that individual free and uncontrolled, but we know that
at that stage we are unlikely to have sufficient evidence to prefer
the correct charge. What we do is either we have to release them
or we prefer usually a much more minor charge which we know we
can defer. All the moves towards charging people with an appropriate
offence in order that justice can progress properly in a correct
way are completely overturned by the two options that are available
to police at present. Therefore, we believe there is a need for
us to have the opportunity to put bail conditions on defendants
prior to charge and, of course, we accept that these conditions
have to be constrained in certain ways and we also accept they
will be subject to judicial oversight and appeal.
7. Leaving terrorism aside, with detention it
is strictly limited on how long you can hold a person before you
charge them. There is no such provision here. How long do you
envisage imposing bail conditions for? Would you be happy for
a time limit or do you think it should be ad infinitum?
(Mr Burbeck) No, not ad infinitum. That would
be completely inappropriate. We do accept there need to be reasonable
time limits. Perhaps a reasonable time limit and if we want an
extension then we should go to judicial review and we would leave
that time limit open to those who are concerned to constrain us.
But we would be looking certainly at a few weeks.
8. You are saying you do not mind judicial oversight.
(Mr Burbeck) Yes.
9. Then you mentioned judicial review. Do you
see judicial review as being like judicial oversight?
(Mr Burbeck) Sorry, no, I have accidentally slipped
into a legal term. I will stay with the term judicial oversight
10. So you would be happy for an appeal system.
(Mr Burbeck) We think it is essential.
(Mr Blair) Can I just add that this seems to me that
this is part of trying to make the justice system more logical.
One of the things that we have got with the current PACE codes
of practice is these time limits and constantly—whether
it is our own cases or the cases you read about in the press—you
will see the police going right to the edge of that 36 hours or
whatever, and then charging the person. There are two bits to
that. One is that this would be another way of doing it so people
are not held in custody while that process goes on; the second
one—that we will be pressing for in the Codes of Practice—is
about looking at the clock and saying "Is this clock real?"
And if the person cannot be questioned should that be excluded
from the period, so periods of sleep or periods when a legal representative
is not available, is that part of the period? I think this is
all about asking what is a logical approach to this. I would see
that pre-charge bail with certain constraints and, as we say,
legal oversight and so on, is an appropriate way and it will stop
people being held for that 36 hour period and then charged at
that point. The other issue that is important is a connective
issue which is the idea of bringing the CPS into the charging
process. As you know, there are a number of experiments and evaluations
of that going on. If that is going to work in practice across
the whole country, then the idea of pre-charge bail I think is
almost inevitable otherwise you are going to have a lawyer in
every police station and that is going to be difficult.
11. Does pre-charge bail exist anywhere else
in the world?
(Mr Blair) I do not know the answer to that.
(Mr Burbeck) I cannot help either, I am afraid.
12. If we do not know that, do you not accept
that this measure—if it comes forward—will be labelled
as a gross violation of human rights?
(Mr Burbeck) I think, as I opened, the police position
is that bail before charge is less intrusive than detention, and
detention is compatible—that has been held on many occasions—and
therefore pre-charge bail would also be compatible. That is the
police position.
13. Would you use this power for the whole range
of offences or would you limit it to a certain category? If so,
which?
(Mr Burbeck) We would like it for the whole range
of offences because even minor offences can cause enormous disruption
in communities and we do not want individuals in custody unnecessarily.
As Ian Blair has said, a by-product of this is that we will be
able to release some offenders earlier than we currently do. That
is an important aspect. There are some benefits to the defendant
as well as significant benefits to the investigative process and,
very importantly, to victims and witnesses.
14. Post-charge bail, there are a whole range
of bail conditions. Would you want access to that full range of
bail conditions for pre-charge bail?
(Mr Burbeck) We had anticipated that the conditions
would be more limited. In particular, we are interested in those
that ensure the offender does not go near victims and witnesses,
that the offender does not go near particular places in the community,
and that there is some means of preventing them from absconding,
so appropriate conditions to keep them in this country.
15. What problems do the police encounter for
people who breach bail conditions currently, post-charge? What
difficulties do you encounter? Do you have to commit resources
to catching them and taking them to court?
(Mr Burbeck) We do. The problems are associated with
tracking some of the offenders down, particularly when the bail
conditions have not been sufficiently tight. Then the other is
that there has been some misunderstanding about whether individuals
need to appear at the front door when it is alleged they are inside
a building when they are subject to curfew. That is being sorted
out. There are problems with the existing bail conditions, but
they do largely control offenders who are waiting to appear before
a court. They are largely successful.
16. Do you envisage the need for extra resources
if pre-charge bail conditions were made available to you? In terms
of people who breach them, because presumably a lot more people
will be out on bail.
(Mr Burbeck) No, because we believe it will make the
criminal justice system more effective, we believe we can manage
this within the existing resources. We are not asking for extra
resources associated with this particular initiative.
Chairman
17. You mentioned that you would accept a time
limit. What would be a reasonable time limit?
(Mr Burbeck) A month, four weeks.
18. How does that compare with what happens
at the moment?
(Mr Burbeck) At the moment we either keep them in
custody or we release them.
19. Do you keep them in custody for that length
of time?
(Mr Burbeck) No, we keep them in custody for up to
36 hours. If it is a very difficult and very complex enquiry—and
there have been a few high profile cases recently in the press
involving children, children who have been abducted and other
serious crimes—we have to use every single hour that is
available to us. What we would imagine in this arrangement is
that we would release the individual earlier for them to re-appear
at the police station a month later. That is for those who we
keep in for a long time. The others, we allow them to remain completely
free until we have sufficient evidence to charge. Not only is
there a risk to the community, in that these are often persistent
offenders who carry on offending, but secondly they remain in
communities intimidating their neighbours.
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