Liberty s Briefing on all stages of the Police (Detention and Bail) Bill in the House of Commons

Transcription

1 Liberty s Briefing on all stages of the Police (Detention and Bail) Bill in the House of Commons July 2011

2 About Liberty Liberty (The National Council for Civil Liberties) is one of the UK s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. Liberty Policy Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research. Liberty s policy papers are available at Contact Isabella Sankey Rachel Robinson Director of Policy Policy Officer Direct Line Direct Line: bellas@liberty-human-rights.org.uk rachelr@liberty-human-rights.org.uk Sophie Farthing Policy Officer Direct Line Sophief@liberty-human-rights.org.uk 2

3 Introduction 1. This Bill is due to be introduced and receive all its readings in the House of Commons on Thursday 7 th July It comes in the wake of a High Court decision, R (Chief Constable of Greater Manchester Police) v City of Salford Magistrates Court and Paul Hookway by Mr Justice McCombe on 19 th May which upheld an earlier decision by District Judge Jonathan Finestein, sitting at Salford Magistrates' Court on the 5 th April The Government has brought forward the current Bill with the intention of passing emergency legislation which would allow for police practice to return to that before the Hookway judgment. Greater Manchester Police (GMP) have meanwhile been granted permission to appeal this decision to the Supreme Court which is due to hear the case on the 25 th July The Supreme Court has, in the interim, considered an application by GMP requesting that the High Court judgment is set aside until the conclusion of the substantive Supreme Court hearing. The application was dismissed on the basis that the Government has announced its intention to bring forward emergency legislation. If this Bill is passed, the outcome of GMP s appeal to the Supreme Court will be largely academic. 2. The judgment concerned the police s application for an extended warrant of detention under section 44 of the Police and Criminal Evidence Act 1984 (PACE Act) for Paul Hookway, a murder suspect, who had already been arrested and bailed by police under other relevant PACE Act provisions and the Bail Act 1976 (BA). The BA provides that suspects who have been arrested but not charged (in non-terror cases) can be released by police on bail, with or without conditions attached. Under the BA if a suspect is bailed by police they can then required to answer bail. This means that a suspect can be required to present themselves at a police station and surrender to custody for further questioning and or charge at a specified time on a specified date. 2 The PACE Act governs police powers and practice in the arrest, detention and charging of suspects. Section 41(1) provides that subject to the following provisions of this section and to sections 42 and 43 below, a person shall not be kept in police detention for more than 24 hours without being charged. Under section 42 of the PACE Act a superintendent (or above) can authorise the continued detention of a suspect beyond the initial 24 hours for an additional 12 hours (making a total of 36 hours). Section 43 of the PACE Act allows a Magistrate to issue a warrant of further 1 R (Chief Constable of Greater Manchester Police) and City of Salford Magistrates Court and Paul Hookway. 2 Section 3 of the Bail Act

4 detention on application by the police, and section 44 of the PACE Act allows for a Magistrate to further extend the warrant for detention granted under section 43. Section 44(3) provides that the period for which a warrant of further detention may be extended shall not (a) be longer than 36 hours; or (b) end later than 96 hours after the relevant time. 3. The Hookway case revolves around the statutory construction of relevant time. Paul Hookway was arrested at on 7 th November Following arrest, a superintendent authorised Paul Hookway s detention beyond 24 hours under section 42 of the PACE Act. This was followed by Magistrates issuing a warrant of further detention under section 43 of the PACE Act which said You, the constables of Greater Manchester Police are hereby authorised to keep the named defendant in police detention for 36 hours from the time of the issue of this warrant. This warrant was issued at on 8 th November meaning that the 36 hours would have expired at on 10 th November The suspect was, however, bailed by police at on 9 th November 2010, just over eight hours before the time on the PACE detention clock would have expired. It was when the police applied for a further extension of the warrant for detention (under section 44 of the PACE Act) on 5 th April 2011 to allow them to hold Mr Hookway for longer than the 8 hours remaining when he answered police bail, that the application was refused on the basis that an extension of further detention shall not end later than 96 hours after the relevant time and that the relevant time was (in accordance with section 41(2) of the PACE Act) the time at which the person arrested arrives at the first police station to which he is taken after arrest. Under this construction, the relevant time was on 7 th November Since 1984, the relevant provisions of the PACE Act read together with relevant sections of the BA have been interpreted to mean that when a suspect is bailed by police, the detention clock effectively stops running and only starts again when the suspect answers to bail and is detained again. In practice this interpretation has meant that a suspect can be detained and questioned over an extended period (sometimes years) as long as unused time remains on the detention clock (i.e. the period that has been already allowed under warrant which in non-terror cases cannot exceed 96 hours in total). The Hookway judgment effectively held that a true statutory construction of the PACE Act provisions meant that the detention clock continues to run while a suspect is on police bail. This would mean that police could 4

5 not re-detain a suspect who had been held for the shortest period after arrest if more than 96 hours on bail in the community had passed. 5. It is, in Liberty s view, somewhat surprising that this appears to be the first time that the issue has arisen in the 25 years that the PACE Act has been in force. While we believe that in passing the PACE Act Parliament intended the detention clock to be stopped and started (discussed further below), there is nothing in section that provides for or makes reference to how the time limits should apply to an individual who has been granted police bail, which inevitably leaves the position somewhat unclear. The Bill 6. The Bill contains two clauses. Sub-clause 1(1) reverses the effect of the High Court ruling, amending section 47(6) of the PACE Act to make it clear, on the face of the Act, that in calculating the period of pre-charge detention, any period spent on police bail shall be disregarded. Sub-clause 1(2) makes consequential clarification to section 34(7) of the PACE Act. Sub-clause 1(3) provides that subclauses (1) and (2) are deemed always to have had effect. 7. Liberty supports the Government s intention to amend the law as proposed. In our view the proposed reform is clarificatory and would do nothing more than return the law to the original intention of Parliament and the way in which it has been interpreted by judges, prosecutors and defence lawyers for the best part of 25 years. Indeed, as Michael Zander QC has observed, Parliamentary debates during the passage of the PACE Act indicate that it was Parliament s intention for a suspect to be able to be detained and questioned for no more than 96 hours in total, rather than for only 96 hours following the moment of arrest. 3 During Standing Committee for the Bill in the House of Commons, the Labour Opposition moved an amendment to the then clause 43. Clare Short for the Opposition explained that the amendment was intended to solve an omission in the Bill which without amendment would mean that someone detained and released could be re-detained for the full, overall period (as if the previous detention had not taken place). The Opposition amendment was 3 The Detention Clock An Unhelpful Decision Which is Surely Wrong, Criminal Law and Justice Weekly, Vol. 175, 18 June 2011, by Michael Zander QC, Emeritus Professor, LSE, available at - 5

6 intended to ensure that someone who was detained, released and re-detained would be protected by the overall time limit of 96 hours: In other words the total period of detention permissible under these clauses would apply to someone who had been released on bail and redetained. 4 The then Home Secretary, Douglas Hurd, responded by agreeing that there was a gap in the protections afforded by the Bill and bringing forward a Government amendment (now section 47(6) of the PACE Act) at the Bill s Report Stage in the Commons. Section 46(7) provides that: Where a person who has been granted bail under this Part and either has attended at the police station in accordance with the grant of bail or has been arrested under section 46A above is detained at a police station, any time during which he was in police detention prior to being granted bail shall be included as part of any period which falls to be calculated under this Part of the Act. Although nothing was said by the Home Secretary when the Government amendment was introduced at Report, in responding to Clare Short s amendment in Committee the Home Secretary said: In theory, the ability to release someone on bail provides a way of extending the time limit on detention in clause 37 [section 41 of the Act]. Clearly it would be wrong, and an abuse on their part for the police to do that merely to restart to detention clock on his surrender to bail at the end of the time that is fixed. I accept that the Bill should not allow for those and similar cat and mouse tactics; we need to reconsider clause 43 in that light. 5 It is arguably implicit in section 46(7) that if time already spent being detained was to count for the purposes of the detention clock, then time on bail (and therefore not in detention) should not count. That said, the lack of any explicit reference to how the period on bail should be treated makes the clarifying amendments proposed by Government in this Bill welcome. 8. We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden. They would not in our view, not fall foul of Article 7 of the European Convention on Human Rights 6 or the common law rule against retrospective penalties. As well as the public protection and objectives that can be served by allowing suspects to be bailed by police while investigations continue, there are additional human rights reasons which mean that a period of beyond 96 hours from arrest may be required. Unduly limiting the period for which a suspect may be bailed by police could have the effect of encouraging premature or inappropriate charging with all the injustices that 4 Ibid. 5 Ibid 6 As incorporated into domestic law through the Human Rights Act

7 would flow. It could also have the effect of encouraging police to detain for the maximum (96 hour) period in circumstances where a suspect could be released earlier thereby supporting prolonged detention rather than release on bail. Need for further safeguards 9. The Bill is clearly intended to be emergency in its nature, seeking as it does to return the law to its previous interpretation following a High Court ruling. For that reason, we do not suggest amendments to the Bill here. We do however believe that the Hookway case and the subsequent initiation of this legislation has highlighted both the value of police bail and the need for clarification over the safeguards required. 10. If passed unamended, the Bill will return us to the position whereby there is no statutory time limit on police bail. This means that bail before charge can go on for an unlimited amount of time other than the obvious restriction that the CPS has to charge someone suspected of a summary offence within 6 months. While 96 hours may well be too short a limit to allow effective further investigation in more complicated cases, it should not be the case that police bail can go on forever. In addition to the ongoing obligation to surrender to further questioning, police bail can have attached to it a number of highly onerous conditions. It is worth noting that when the PACE Act was passed in 1984, there was no provision for the granting of police bail conditions. While an ongoing requirement to present yourself at a police station at various intervals is intrusive enough, previous reforms which allow onerous conditions to be attached to police bail certainly warrant corresponding safeguards. At present the only limitations on police bail are the purposes for which it can be granted 7 and a number of conditions that are explicitly excluded by legislation 8. Once bail has been granted by a custody officer that officer or another at the same police 7 Under sections 3(6) and 3A of the BA, a custody officer can impose police bail conditions where it appears necessary to ensure that the person: surrenders to custody; does not commit an offence while on bail; does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person; for his own protection or, if a child or young person, for his own welfare and in his own interests. 8 Under section 3A(2) of the BA, there are a number of bail conditions that a custody officer is prevented from imposing before charge but which are available to a court granting bail postcharge. These include some of the most onerous restrictions which are reserved for a court to impose once a higher standard of suspicion has been met following charge, such as: electronic monitoring requirements, requirements that the person reside in a bail hostel; that the person make himself available to enable inquiries or a report to be made to assist the court in dealing with him for the offence; or that the person be available before he has to surrender to custody for an interview with a legal adviser. 7

8 station can vary the conditions and in doing so can impose more onerous conditions. 9 Where a person is released on bail, after arrest but before change, in circumstances where there has been a duty imposed to attend at a police station, fails to attend the police station at the appointed time, they will be guilty of an offence 10 and can be arrested without a warrant. 11 Where a person breaches other police bail conditions, there is a power of arrest under s. 46A (1A). While a person released on conditional police bail can apply to a Magistrates court for the conditions to be varied 12 there is little in the way of statutory guidance as to when a Magistrate should adjust the conditions. 11. Examples of conditions which a court or custody officer can impose include such things as: requiring the person to surrender their passport; notification of residence; or avoiding named people or places. 13 But aside from the limited exclusions, discretion to impose conditions is left wide open. That combined with the lack of time-limit can make the operation of police bail extremely oppressive. Liberty has previously expressed concern at the impact of onerous and lengthy police bail conditions. These can be imposed for any category of offence where police bail is available. The most high profile examples of the problematic use of police bail (with conditions) has been in the context of the pre-emptive arrest of protesters. In 2009, 114 environmental protesters were arrested at the Iona independent school in Sneinton, Nottingham. The protesters were arrested, shortly before a planned protest at an E. ON power station for conspiracy to cause criminal damage and aggravated trespass. 14 Over the next few days, all those arrested were released without charge on police bail. Overly broad offences (such as aggravated trespass which essentially turns peaceful demonstrations on private land into a criminal matter) combined with restrictive police bail conditions give police the cumulative power to extinguish the right of peaceful protest especially for time sensitive demonstrations. Another example of the use of police bail in this context was the arrest, detention and bailing of protesters during the occupation of Fortnum and Mason on 26 th March this year. 12. For these reasons, Liberty believes that parliamentarians must urgently introduce time limits for the period that a suspect can be released on police bail. 9 Sections 3A(6) and 5B of the BA. 10 Section 6 BA. A warrant can be issued for a person who has absconded: s 7 BA. 11 Sections 37C and 46A PACE Act. 12 Section 47(1E) PACE Act. 13 This is not an exhaustive list. 14 Section 68 of the Criminal Justice and Public Order Act

9 While we accept that there will not be sufficient parliamentary time to do during the passage of this Bill, we believe that a statutory time limit could easily be introduced in the Protection of Freedoms Bill currently awaiting its Report Stage in the House of Commons. As we discuss further below, a time limit could also be introduced as part of wider reforms to the police bail system that we suggest for the Terrorism Prevention and Investigation Measures (TPIMs) Bill which is currently in Committee Stage in the House of Commons. We believe that the maximum period that anybody should be on pre-charge bail is six months. This would allow sufficient time for an expeditious investigation to take place but would not leave individuals languishing under oppressive restrictions for indefinite periods. It would, of course, remain the case that if a suspect was not charged within their six month bail period, but further evidence came to light after that period expired, the police would be able to re-arrest and detain the suspect before either charging or again releasing them on police bail. Police Bail in Terror Cases 13. The implications of the Hookway case have ably demonstrated the value of police bail in allowing complex investigations into serious suspected criminality to continue while also allowing suspects to be released with certain restrictions imposed. Indeed, traditionally, within the criminal justice system, restrictions on a person s movements, communication etc are justified in three different circumstances in the form of bail conditions pending prosecution, as a form of community punishment following conviction or as a licence condition following release from imprisonment. Crucially, all of these situations fall squarely within the criminal justice system either pre or post prosecution. 14. There is however currently a statutory bar on pre-charge bail in terrorism related cases. Police bail can be granted after arrest but before charge for all other offences, including serious violent and sexual offences. However police bail for terrorist suspects who are arrested and detained under section 41 and Schedule 8 of the Terrorism Act 2000 is specifically excluded. Section 3A of the BA applies to bail granted by a custody officer under Part 4 of the PACE Act. Section 41 and Schedule 8 of the Terrorism Act (providing for the arrest without a warrant a person reasonably suspected of being a terrorist) however do not fall within the detention provisions under Part 4 of the PACE Act. Police bail, therefore, cannot be granted under section 3A for individuals who have been detained under section 41. 9

10 15. Where suspicion of terrorism exists but there is believed to be insufficient evidence to charge, restrictions are instead imposed by the Home Secretary under the discredited control order regime. Police and prosecutors may have little if any involvement and once a control order is in force, case files are kept and overseen by the Home Office and the Security Services with no requirement for prosecutors to review them. Indeed the Home Office s own Counter-Terror Report concluded that control orders can mean that prosecution and conviction (a principal purpose of our counter-terrorism work) becomes less not more likely. 15 This unhelpful system is set to be retained under the TPIMs Bill. Referring to the way in which the Hookway judgment would restrict police bail in non-terror cases, the Minister for Policing and Criminal Justice noted in his oral statement to the House on 30 th June 2011: We cannot, must not and will not ask the police to do their work with one hand tied behind their backs. 16 Maintaining the prohibition on police bail in terror cases arguably does just that meaning that terror suspects are warehoused for years on end under a parallel administrative detention regime instead of being further investigated and eventually prosecuted if additional evidence comes to light. 16. Amendments to the TPIMs Bill which would replace the powers granted to the Home Secretary with a power for her to trigger police bail in individual terror cases were tabled by Julian Huppert MP during the first part of Committee Stage for the TPIMs Bill. The proposal to devise a system of police bail in terror cases in place of yet another administrative detention regime was also supported by Lord MacDonald, former DPP and the independent overseer of the Home Office Counter-Terror Review. In his oral evidence to the Committee, Lord MacDonald said I am not arguing that people who are plausibly suspected of terrorist crimes should not be subject to restrictions of course they should but they should also be subject to investigation. It is not enough to say, We haven t obtained any evidence so far, therefore we ll put them in a control order and let the security services look after them. That is not an appropriate response. If we have not obtained enough evidence so far, we need to keep trying, and in the course of that attempt, of course we can put them on something that is analogous to police bail. Of course, we can put them on curfews, tell them they cannot go to certain places and tell them they cannot meet with certain people. Those are common or garden bail conditions. That is happening up and down the country as we speak, including to people who are not subject to charge, who are on police bail. There is a great misunderstanding about this; it is not per se constitutionally objectionable to restrict people who have not been charged. It happens all the 15 Home Office Report, ibid, at para See the Oral Statement by Nick Herbert, the Minister for Policing and Criminal Justice in House of Commons (Hansard: 30 Jun 2011 : Column 1133) 10

11 time, but you have to get the process right, so that it is a part of criminal justice, and not just handing people over to be surveilled by the security services on control orders, which does not create or has not, historically, created any evidence at all. The police bail amendments were debated by the Committee but not ultimately pushed to a vote. The Government has yet make any plausible argument as to why police bail in terror cases would not be an adequate replacement to the unsafe and unfair control order regime. 17. As Lord MacDonald makes clear the desire to place restrictions on those suspected of planning dangerous activities is understandable. And it is not the placing of restrictions on those suspected of terrorism that is the civil liberties problem with control orders. The principal civil liberty objection to control orders is that these restrictions are imposed entirely separately from the criminal justice system. Restrictions, which can last indefinitely, are imposed by the Executive without even arrest or police interview and with seemingly no desire to pursue eventual prosecution. Indeed, the control order regime exists so separately from the criminal justice system that only one person ever placed under a control order has been subsequently prosecuted for a terrorism offence. 18. Liberty sees no reason why restrictions placed on those suspected of terrorism could not be brought within the criminal justice system by either lifting the statutory bar or amending the law so that the prohibition could be lifted in individual cases on application to the High Court. Changing the law in either of these ways would mean that where a criminal investigation is underway but there is currently insufficient evidence for charge, police, in consultation with the Security Services, could impose conditions on terrorist suspects, for criminal justice purposes, while further evidence is gathered through targeted surveillance. This would encourage the Security Services to work with police and prosecutors to ensure that criminal investigations are underway before proportionate and purpose-specific restrictions could be imposed. It would also mean that secret court processes could be abandoned, restoring British justice standards and preventing the embarrassing and expensive defensive litigation which will almost certainly continue if control orders are effectively retained. 11

12 Conclusion 19. Liberty believes that the proposed clauses in the Police (Detention and Bail) Bill represent a necessary clarification of the law the longstanding interpretation of which was effectively overturned in the Hookway case. We do however believe that Parliament must urgently enact necessary safeguards to prevent abuse of the wide powers afforded under the police bail regime. In particular a statutory time limit should be imposed, limiting the total duration of police bail to no more than 6 months. This could be done either through the Protection of Freedoms Bill or the TPIMs Bill, both currently in the House of Commons. Liberty also believes that further reform is required to allow the bar on police bail for terror suspects to be lifted in individual cases. This would provide a common sense and fairer alternative to the control order regime which would increase the chances of further investigation and ultimate prosecution while allowing for restrictions (not dissimilar to those allowed for under control orders and Schedule 1 of the TPIMs Bill) to be imposed on suspects in the interim. 12