Safeguards
47. Conditions on bail can significantly restrict
a person's movements and liberty. For this reason, a number of
our witnesses argued that the proposal should incorporate proper
safeguards. When we put these to the Minister, he said that he
was satisfied that the Bill already contained sufficient protection
for the suspect:
"The three safeguards are: it has to be
[imposed by] the custody sergeant; it has to be with the consent
of the prospective defendant; and if the prospective defendant,
after he has agreed initially, does not like it continuing he
can apply to the magistrates' court to have it discharged".[59]
48. While we welcome the safeguards provided in Schedule
2, in relation to pre-charge conditional bail, we are not convinced
that they are sufficient. We therefore considered the following
suggestions, which were put to us by our witnesses:
(a) a strict time limit on the length of conditional
bail before charge;[60]
(b) a requirement that the decision to impose
conditions is taken by a police officer not below the rank of
Inspector;[61]
(c) a requirement that the officer has "substantial
grounds" for believing that the conditions are necessary
for the specified purposes;[62]
(d) a right of appeal with access to public funding.[63]
49. Time limit: As presently drafted, the
Bill will allow a custody officer to impose conditions for potentially
very lengthy periods of time. This is difficult to justify before
there is sufficient evidence to charge because there is every
chance that the suspect is innocent. When we put this point to
John Burbeck, ACPO lead on criminal justice matters, he conceded
that "reasonable time limits" were necessary and suggested
a period of four weeks.[64]
Roger Smith, Director of JUSTICE, argued that the time limit should
be shorter.[65]
50. In the light of Mr. Burbeck's evidence, we are
surprised that the Bill makes no provision for a time limit. However,
the Minister argued that it was not appropriate to put a time
limit in primary legislation, as it was an issue which should
be decided by the custody officer when imposing the conditions.
He also emphasised that, under the Bill, the suspect could apply
to the magistrates' court to discharge the conditions if, for
example, the duration of conditional bail had become excessive.[66]
51. As presently drafted, we believe the Bill
gives rise to a risk that onerous conditions may be allowed to
run indefinitely. For this reason, we would prefer to see a time
limit included in the primary legislation, rather than left to
the custody sergeant when imposing the conditions. We agree with
John Burbeck, of the Association of Chief Police Officers, that
four weeks would be a reasonable time limit and recommend that
the Bill be amended accordingly.
52. By an officer not below the rank of an Inspector:
The Bill will allow a custody officer to impose conditions
on bail before charge. A custody officer must be of at least the
rank of sergeant.[67]
There is no provision for a review of his decision by an officer
of a higher rank. This contrasts with the position for detention
before charge, which must be reviewed periodically by an Inspector
or higher rank. Furthermore, any extension of detention beyond
the initial 24 hour limit must be authorised by a Superintendent
or higher rank.[68]
The Bar Council and Criminal Bar Association argue that:
"...there is a strong argument for [requiring
the decision to be taken by an Inspector]...bearing in mind that
here, one is concerned with possible restrictions upon a suspect
in circumstances where police suspicions may be wholly unfounded.
At the very least, where the suspect seeks a variation in bail
conditions, adjudication on this should be the responsibility
of an officer not below the rank of inspector".[69]
53. However, we understand that a custody officer
can already impose conditions on bail after charge
has been brought. The Minister said:
"As far as the custody sergeant is concerned,
we think he or she is experienced; it is an appropriate level
at which to do it; it requires the consent of the defendant."[70]
54. We believe that the custody sergeant is an
officer with an appropriate level of experience for the responsibility
of imposing bail conditions before charge because, unlike detention,
conditional bail requires the consent of the prospective defendant.
55. Substantial grounds for believing the conditions
are necessary: As presently drafted, the Bill will allow a
custody officer to impose such conditions on bail as "appears...
necessary" to secure that (a) the person accused surrenders
to custody; (b) he does not commit an offence while on bail; and
(c) he does not interfere with witnesses or otherwise obstruct
the course of justice whether in relation to himself or another
person.[71]
56. We are not convinced that a stronger requirement
(such as "substantial grounds for believing") would
make any significant difference to police bail decisions in practice.
57. Availability of public funding for right of
appeal: As presently drafted, the Bill will allow the suspect
to apply to the magistrates' court to vary the conditions on bail.
In this context, "vary" means "imposing further
conditions after bail is granted, or varying or rescinding conditions".[72]
We were told that access to public funding to make such an application
would require express statutory provision.[73]
We understand this to mean access to full legal aid and
representation at court, which at present is only available once
a suspect is charged. Limited public funding is already available
before charge but it is unclear as to whether this would adequately
support an application to vary bail conditions with legal advice/assistance.[74]
58. There may, therefore, be a case for extending
the provision of public funding to suspects before charge.
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