Introduction
Over the past decade the powers of the police to subject a person, who has been arrested but not charged with a criminal offence, to bail with conditions attached have dramatically increased. Although statistics are not routinely collected, it is likely that thousands of people each year are subjected to conditions that may range from non-association with specified people, or not going to specified locations, to residing at a particular address and abiding by a curfew. Such conditions may be imposed for lengthy periods of time, and whilst the conditions themselves may be reviewed by a court, in practice the decision to “impose” bail cannot. It is worth emphasising from the outset that such conditional bail may be imposed on a person even though there is insufficient evidence to charge them with a criminal offence. All that is required is that the person has been arrested.
Whilst these powers have occasionally caught the attention of the media,Footnote 1 they have otherwise received very little attention.Footnote 2 Although the powers pose a significant challenge to well entrenched constitutional and human rights, for the most part they have been considered only in terms of whether they serve the interests of efficient police investigation. When considering the introduction of powers to attach conditions to bail granted to a person immediately after their arrest (street bail), the Joint Parliamentary Committee on Human Rights concluded that they did not give rise to significant incompatibility with the European Convention on Human rights (ECHR).Footnote 3 The few decisions of the courts on pre-charge police bail have either not considered or given short shrift to human rights concerns.Footnote 4 The powers have similarly attracted little interest from the legal profession or academia.Footnote 5
In view of the significance of the powers under scrutiny, we begin with a detailed account of police powers to grant bail, tracing their development from the introduction of “modern” policing in the nineteenth century to the present day. This account demonstrates that powers that were originally introduced as a mechanism that potentially enhanced the liberty of those arrested by the police have been transformed, as a result of the changing role of the police in the investigation of crime and the introduction of powers to attach conditions to bail, into a mechanism that threatens the liberty of those who are subjected to them. We go on to examine these powers by reference, in particular, to the right to liberty under Article 5 ECHR. We also, all too briefly, consider the implications of such powers for other rights under the Convention, in particular the right to private life (Article 8), the right to freedom of expression (Article 10), and the right to freedom of assembly and association (Article 11), and for the presumption of innocence (Article 6(2)).
We acknowledge that police bail powers also raise constitutional issues that we do not have space to consider. Although the police and their forerunners have had certain bail powers for centuries, there is at least a tension with the general principle that under the doctrine of the separation of powers such powers are essentially the preserve of the judiciary.Footnote 6 Further, an examination of the development of police bail powers in the context of the “drift to summary justice”, which has been identified and explored by a number of scholars, is beyond the scope of the article.Footnote 7 Nevertheless, we hope that we have done enough to illuminate an area that ought to demand wider scrutiny and close attention.
I. Police Bail Prior to the Police and Criminal Evidence Act 1984
In English law the grant of bail has never been an exclusively judicial activity, and since the advent of “modern” policing in the nineteenth century, alongside judicial bail there has always been a form of statutory bailFootnote 8 available to the police;Footnote 9 since the Metropolitan Police Act 1829 police constables have been able to grant bail in one form or another.Footnote 10 This state of affairs appears not to have been the consequence of any deliberate decision. Rather the empowerment of the police was more a consequence of the chaotic circumstances that surrounded the establishment of the Metropolitan Police. Parliament granted that power to the new police no doubt because their predecessors had taken bail, but it sought to regulate what was undoubtedly an entrenched practice.Footnote 11 The power to grant bail was seen as useful for reasons of operational efficiency, if not practical justice. When the courts were not open the power to bail enabled the police to clear the watch-house of those accused of misdemeanors, frequently no more than the local drunks.
From the outset of modern policing the separation of powers between the police and the courts was somewhat blurred, and bail was not unique in this respect.Footnote 12 This jurisdictional muddle was initially a matter of concern to Parliament, with the quasi-judicial powers of the police causing some anxiety.Footnote 13 However, during the 1830s these concerns were examined and largely dismissed as the police became established and were recognised as a significant improvement on their disorganised and unprofessional predecessors. Police power to grant bail only applied in respect of petty misdemeanors, although many saw advantages in the police being able to liberate those considered respectable who otherwise would have to be detained in the station pending the next sitting of the magistrates.Footnote 14 The 1829 Act was limited, empowering the police to grant bail only to those detained in a watch-house at night on condition that they appear at a magistrates' court on the following day it sat.Footnote 15 However, if a person was brought to the watch-house during the day or on a Sunday the police had no power to bail them. In 1837 the Metropolitan Police Commissioners reported to a House of Commons Select Committee that this lacuna was causing practical difficulty, particularly at Christmas when police stations would rapidly fill with drunks who remained there for some days until the courts resumed business.Footnote 16 Subsequently, the Select Committee recommended that the police power to grant bail be widened to prevent unnecessary detention in police stations.Footnote 17 Indeed, some even advocated the extension of the power to bail to cases where felonies were alleged,Footnote 18 and sure enough the power of the police to bail was gradually extended to include felonies as well.Footnote 19 Thus by the end of the nineteenth century bail was firmly entrenched in the panoply of police powers.Footnote 20 Whilst the admission to bail has traditionally been considered a judicial function, in the case of police bail it seems to have been accepted, somewhat anomalously, that this was an executive function that was satisfactorily discharged by them for good practical reasons.Footnote 21
Until 1925 police bail was available only after the police had decided to charge a suspect. In general a suspect would be charged by the station officer and then, if not held in custody, would be bailed, with or without a recognizance, to appear at the next court sitting. However, under the Criminal Justice Act 1925 the power of the police to bail a suspect before charge was made available. Paradoxically, given subsequent developments, when first enacted the power to release suspects before charge was seen as a necessary safeguard against police high-handedness and abuse. The change in the law arose from a now largely forgotten episode involving a decorated war veteran, Major Sheppard, who had been accused of theft by a prostitute. Sheppard was detained and interviewed in flagrant breach of the Judges' Rules and, no doubt because of his social standing, a statutory inquiry was ordered by the Home Secretary.Footnote 22 The Rawlinson Inquiry concluded that Major Sheppard had not been promptly granted bail: “The real principle underlying the whole matter is that every person in custody who can safely be bailed has a right to be bailed at the earliest possible moment. It is vital that the police should bear this principle in mind. It was absolutely lost sight of in Major Sheppard's case”.Footnote 23 Rawlinson recommended that an amendment be added to the Criminal Justice Bill then before Parliament to enable pre-charge bail to be granted by the police.Footnote 24 Introducing the amendment in the House of Lords the Lord Chancellor, Lord Cave, argued that the change would benefit both the police and the suspect.Footnote 25 The measure was intended to ensure that individuals were not inconvenienced while, as in Major Sheppard's case, the threads of the inquiry were drawn together. In fact, The Law Times argued that the provision was to be seen in the same class as the Habeas Corpus Act as a safeguard of liberty and freedom.Footnote 26
In 1929 the Royal Commission on Police Powers and Procedure reviewed the treatment of detainees in police custody, in part because of concerns about police abuse such as in the Sheppard case.Footnote 27 Although the power to release suspects on pre-charge bail had only recently been enacted the Commission considered its use an integral part of best practice.Footnote 28 The “delayed charge” was a valuable power that should be used as “freely” as possible.Footnote 29 As well as echoing the previously stated rationales for this power, the Commission argued that for the suspect it meant that he could be released pending further enquiries without the stigma of a court appearance. The provisions thereafter became an accepted police power, and were consolidated and re-enacted in s. 38 of the Magistrates Act 1952.
Thus by 1925 the police had extensive powers to grant bail, both before and following charge. How, then was the power used in practice? Although there is scant official evidence,Footnote 30 what evidence is available shows that in practice it slowly became not a safeguard for the liberty of the individual, but a tool of police investigatory convenience if not abuse. Bottomley and Pease, for instance, observed that by the 1980s police bail was used as a sifting procedure to select those people whom the police wanted to prosecute. Research conducted for the Royal Commission on Criminal Procedure, which reported in 1981, demonstrated that a third of all suspects who were not brought before a court had been initially bailed by the police.Footnote 31
Police bail is a classic example of a low level broad discretionary power which is largely uncontrolled. That it has been abused is, therefore, hardly surprising. In something of a cause célèbre Mandy Rice-Davies was arrested on what Bowes and Street agree was an irrelevant charge and then released on police bail of £1,000.Footnote 32 This was done, it seems, solely to ensure her attendance as a witness at the trial of Stephen Ward. This high profile case resulted in questions in the House of Commons and censorious coverage by newspapers, although neither the Attorney General nor the Home Secretary were prepared to admit there was any impropriety.
However, abuse was not limited to such high profile cases. In 1970 the Cobden Trust reported in its widely cited study Bail or Custody Footnote 33 that the police were engaging in “bail bargaining”, a process whereby bail was used to entice the suspect into making incriminating statements.Footnote 34 This unlawful practice had surfaced in R v Zaveckas Footnote 35 in which the Court of Appeal quashed a conviction based on a confession elicited from the defendant with the promise of bail. However, it was rare for such practices to come to light because, as the authors of the Cobden study noted, “it is extremely difficult to corroborate accounts by defendants of what went on behind closed doors of the police station”.Footnote 36 Furthermore, both the Cobden study and an earlier Home Office StudyFootnote 37 revealed that the initial decision of the police could have adverse consequences for the suspect later in the criminal justice system. For instance, there was a strong correlation between the initial police decision to grant or withhold bail, and the subsequent decisions of magistrates. Suspects who were granted police bail on condition that they appear in court were further remanded on bail by magistrates' courts in ninety two per cent of cases.Footnote 38 The Cobden Trust argued not only that the police were, in effect, acting as judges in their own cause when granting bail but also that well-defined restrictions were needed on the power to grant bail.Footnote 39 Nonetheless, these concerns were dismissed by the Working Party on Bail Procedures in Magistrates' Courts.Footnote 40 The police would retain their “substantial discretionary powers”Footnote 41 that had such an influence on the subsequent decisions of courts with respect to bail.Footnote 42
II. Police Bail Following the Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act (PACE) 1984 is commonly regarded as marking a significant change in the approach to the regulation of police powers, particularly those at the investigative stage of the criminal process.Footnote 43 Many of its provisions were based on recommendations of the Royal Commission on Criminal Procedure (the Philips Commission), which reported in 1981.Footnote 44 However, police bail was treated by the Philips Commission as being largely uncontroversial.Footnote 45 Despite the disquiet that had been voiced in the 1970s, the only major concern expressed in evidence to the Commission was, as identified by the Cobden Trust a decade earlier, the danger of confessions being induced by the offer or perceived offer of bail.Footnote 46 The only recommendation by the Commission in respect of pre-charge bail was that the police should have the power to re-bail a person who had surrendered following the earlier grant of police bail.Footnote 47
As originally enacted, a number of provisions of the PACE 1984 permitted the police to bail a person without having charged them with an offence. Section 34(5) allowed a custody officer to grant bail to a person they were required to release under s. 34(2) because the grounds for detention had ceased to apply and there were no other grounds justifying their detention. Section 37(2) permitted the custody officer to release a person on bail where, having been arrested and brought to the police station, the officer did not have sufficient evidence to charge them with the offence for which they had been arrested. Section 37(7)(b) enabled a custody officer, having determined that there was sufficient evidence to charge, to release a person on bail as an alternative to charging them. This was in addition to the power of the custody officer to release a person charged with a criminal offence on bail pending their first court appearance.Footnote 48 However, in none of these instances were the police permitted to impose conditions. In view of the subsequent introduction of “street bail”, it is worth noting that the power to bail an arrested person without taking them to a police station was not considered by the Philips Commission, and did not feature in the PACE 1984 as originally enacted.
The Royal Commission on Criminal Justice (the Runciman Commission), reporting in 1993, went a step further than the Philips Commission by recommending that the police should have the power to impose conditions on granting bail, both where the suspect was released without charge and following charge. Allowing the police to impose conditions prior to charge “should lead to more thorough investigations”; and post-charge it “would reduce the suspect's liability to attend court”. It would also mean that where a decision was made not to charge or to prosecute, the person would “be able to avoid a court appearance and any attendant publicity altogether”.Footnote 49 Like the Philips Commission, the Runciman Commission gave no consideration to the problems that might arise from extending police bail powers in this way even though research it had itself commissioned found that the police “were sometimes prepared to use their discretion over bail” as a tactic to induce a suspect to talk or to confess.Footnote 50 The Runciman Commission's recommendation was partially implemented by the Criminal Justice and Public Order Act (CJPOA) 1994, s. 27(2)(a), which amended the Bail Act 1976, s. 3 and the PACE 1984, s. 47, to permit a security or surety to be required, and/or conditions to be imposed, where a person was granted bail following charge under the PACE 1984, s. 38(1).
For almost the next decade there were no significant changes to police bail powers. The Law Commission published a consultation paper on bail in 1999Footnote 51 and published a final report, Bail and the Human Rights Act 1998, in 2001.Footnote 52 Whilst the Commission considered police powers to grant or withhold bail post-charge, most of the report concerned bail from a court, and it specifically excluded consideration of police bail in respect of a person who had not been charged.
The next major statutory development was the Criminal Justice Act (CJA) 2003, which introduced the concept of street bail. This was prefigured by the government white paper Justice for All, published in 2002,Footnote 53 which in the then fashionable vernacular described the government's aim as being “to rebalance the system in favour of victims, witnesses and communities and to deliver justice for all, by building greater trust and credibility”. Detailed consideration of changes to the PACE 1984 was left to the review of the legislation established by the then Home Secretary (the Joint Review),Footnote 54 but the government was concerned to identify changes that “could simplify police procedures, reduce administrative burdens, save police resources and speed up the process of justice”.Footnote 55 In this context the white paper raised the question whether it was essential that all arrested persons be taken to a police station “for processing and interviewing”, or whether some of them could be dealt with away from the police station, “thus saving police time”. It no doubt had in mind the findings of the Home Office commissioned research, Diary of a Police Officer, which found that on average 43 per cent of a police officer's time was spent in the police station, and that on average it took three hours to “process” a prisoner following an arrest.Footnote 56 The Joint Review, published just days before the Criminal Justice Bill was introduced in Parliament in November 2002,Footnote 57 recommended that the PACE 1984 be amended to allow a police officer to “offer an arrested person immediate bail from the scene of the arrest on condition that they must attend a specified police station at a specified time in the future”.Footnote 58 Other than stating that both “police officers and lawyers recognise the substantial benefits that [street bail] can offer in terms of saved resources and reduced re-offending rates”, the report provided no evidence of the efficacy of street bail other than a reference to the Milton Keynes retail theft initiative model (which, in fact, did not involve street bail), and gave no indication that issues raised by such a radical departure from previous bail powers had been considered. The Review made no mention of a power to attach conditions to “street bail”.
The Criminal Justice Act 2003 reflected the recommendations of the Joint Review regarding street bail by inserting four new sections into the PACE 1984, ss. 30A, 30B, 30C and 30D.Footnote 59 As originally enacted, the PACE 1984, s. 30, required a police officer, having arrested a person at a place other than a police station, to take them to a police station as soon as practicable after the arrest. There were only two exceptions to this obligation: first, the person could be “de-arrested” before being taken to a police station if the officer was satisfied that there were no grounds for keeping the person under arrest (s. 30(7)); second, the officer could delay taking the arrested person to a police station if their presence elsewhere was necessary in order to carry out “such investigations as it is reasonable to carry out immediately” (s. 30(10)), for example, to conduct a search of premises where the person was when they were arrested, or immediately before they were arrested, under the PACE 1984, s. 32.
Section 30 was amended by the CJA 2003 so that the obligation to take the arrested person to a police station was made subject to release on bail under a new s. 30A (that is, “street bail”).Footnote 60 Section 30A empowers a police officer to release the arrested person on bail at any time before arrival at a police station, subject to a requirement that they attend a police station on a future date. On granting bail, the officer is required to give the person a written notice specifying the offence for which the person was arrested and the grounds of arrest, the police station that they are required to attend, and the time of attendance (s. 30B(1)-(4)).Footnote 61 No conditions on bail were permitted other than the requirement to attend a police station (s. 30A(4)). Failure to attend the specified police station at the specified time renders the person liable to arrest, although such failure is not an offence (s. 30D(1)). In a sense, this was simply an enactment of an idea first mooted by the Philips Commission, namely the attendance notice.Footnote 62 The Parliamentary Joint Committee on Human Rights concluded that the new power did not represent a significant interference with the ECHR Article 5.Footnote 63 However, surprisingly, the grounds for releasing a person on street bail were not set out in statute, and there is no statutory obligation to give the arrested person notice of the grounds or reasons for releasing them on bail. Home Office Circular 61/2003, Criminal Justice Act 2003: Bail Elsewhere Than at a Police Station does set out factors that an officer is required to take into account in deciding whether to release an arrested person on street bail. These include: the type of offence for which the person has been arrested;Footnote 64 whether a delay would lead to loss of vital evidence; whether the person is fit to be released; whether they understand what is happening; whether they are likely to commit further offences; and whether the officer is satisfied that the correct name and address has been given by the arrested person. The legislation imposes no lower age limit in respect of the use of street bail, although the Circular provides that where the arrested person is under 17 years of age, telephone contact should be made as soon as practicable with their parent, guardian or other carer.
The CJA 2003 made a further change to police powers to release a person on bail prior to charge in order to facilitate the statutory charging scheme that was also introduced by the 2003 Act, under which Crown Prosecutors took over many of the charging responsibilities of the police. Previously, having determined that there was sufficient evidence to charge, the custody officer was required to either charge the person or release them. Under the statutory charging regime, custody officers retain responsibility for determining whether there is sufficient evidence to charge under the PACE 1984, s. 37(7), but other than in minor cases or urgent situations, they must refer the case to a Crown Prosecutor for them to make the charge decision.Footnote 65 If the decision is that the person should be charged, the matter is then referred back to the custody officer to administer the charge, and to consider bail under the PACE 1984, s. 38. Section 37(7)(a) was amended to allow the custody officer to release the person on bail pending a decision by a Crown Prosecutor. Although many police stations now have a “co-located” prosecutor, at least during office hours, and CPS Direct has been established to permit contact with a prosecutor at times when a prosecutor is not physically present at a police station,Footnote 66 this amendment gives custody officers some flexibility if a Crown Prosecutor is not immediately available.
For the first time, the police were also given the power to attach conditions to bail granted to a person not charged. This was done by way of an amendment to the PACE 1984, s. 47(1A), applying the “normal powers to impose conditions of bail”Footnote 67 to bail under s. 37(7)(a). The amendment itself was buried in Schedule 2, para. 6(3), of the CJA 2003. This significant extension to police powers which, as explained below, was rapidly expanded to pre-charge bail granted under other provisions of the PACE 1984 by subsequent legislation, thus saw the light of day in a most unprepossessing way. The power to impose conditions had not featured in any of the pre-legislative reviews or white papers. The Explanatory Notes to the Act made no mention of the new power to impose conditions other than in respect of the power of arrest where conditions are broken, and the procedure to be followed under the PACE 1984, s. 37C, where such an arrest takes place. In other words, a major expansion of police powers which, we argue, has considerable constitutional and human rights implications, was simply surreptitiously slipped on to the statute book.
The next major Home Office consultation paper, Policing: Modernising Police Powers to Meet Community Needs,Footnote 68 whilst making significant proposals to extend police powers of arrest, which were incorporated into the Serious Organised Crime and Police Act 2005, made no mention of police bail.Footnote 69 Neither did the white paper Building Communities, Beating Crime: a better police service for the 21 stcentury,Footnote 70 also published in 2004, which was followed by the Police and Justice Act (PJA) 2006. However, the 2006 Act significantly extended the power of the police to impose conditions when releasing a person on bail, both street bail, and bail without charge from a police station.
In relation to street bail, the PJA 2006, s. 10 and Schedule 6, amended the PACE 1984, s. 30A, so that an officer releasing an arrested person on bail under s. 30A(1) is empowered to impose such conditions as appear to the officer necessary:
• to secure the person surrenders to custody;
• to secure that the person does not commit an offence while on bail;
• to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice; or
• for the person's own protection or, if the person is under the age of 17, for the person's own welfare or in their own interests (s. 30A(3B)).Footnote 71
The conditions cannot include a surety or security but, subject to some minor limitations, they are otherwise unrestricted provided that they are imposed for one of the statutory purposes. As the Parliamentary Joint Committee on Human Rights noted “conditions attached to the grant of bail can include various restrictions such as curfews, tagging, limits on the places a person can visit, or on people with whom they can speak or meet”.Footnote 72 This further extension of police powers rightly caused much concern. The extension of street bail could, in Liberty's opinion, cause “potentially severe restrictions on liberty that could remain in place indefinitely and could be used as a long lasting preventative measure” beyond the supervision of the courts.Footnote 73 To balance the new power Liberty argued, unsuccessfully, that the bill should be amended to impose automatic time limits on the duration of street bail.
If conditions are imposed, the written notice that must be given to the person under s. 30B must specify the requirements imposed by those conditions, and explain the opportunity to apply for variation of the conditions, but does not have to state the grounds or reasons for imposition of the conditions (s. 30B(4A)). Provision was also made for the person to apply for variation of the conditions to a custody officer or to a magistrates' court (ss. 30CA and 30CB), but not to challenge the decision to release them on bail. Section 30D was amended to empower the police to arrest the person if they have reasonable grounds for suspecting that they have broken any of the conditions, although breach of conditions is not an offence. The police may also arrest a person for failure to surrender to street bail.
The government conceded in its s. 19 Human Rights Act 1998 statementFootnote 74 that the extended powers have the potential to interfere with a range of Convention rights but nonetheless argued that any restrictions would be justified.Footnote 75 These conclusions were supported by the Joint Committee. First, the Committee argued that the power to impose street bail was conditional, and subject to restriction. Second, the suspect must be provided with a notice specifying the conditions, and detailing how he might obtain a variation of them. Third, the custody officer has a power to vary those conditions, and thereafter the suspect may further apply to a magistrates' court. The Joint Committee concluded that “in view of these limits and safeguards, and in particular in light of the opportunity to go before a court to ask for the bail conditions to be varied, in our view the provisions in the Bill concerning police bail (sic) do not give rise to a significant risk of incompatibility with Articles 5, 8, 10 or 11 ECHR”.Footnote 76 The committee did not, however, consider whether or not the police should, in principle, have such a power and indeed whether, in a wider sense, such powers are compatible with Convention rights.
With regard to bail from a police station in circumstances where the person has not been charged the PACE 1984, s. 47(1A), was amended to permit conditions to be imposed whenever a person is released on bail under the PACE 1984, s. 37.Footnote 77 Conditions can be imposed for the same purposes as under s. 30A, but in this case a surety or security can also be required. There are also similar provisions to those applying to street bail regarding variation of conditions and arrest for breach of conditions, and for failure to surrender (PACE 1984, ss. 30D, 46A(1), and 47(1D) and (1E), and Bail Act 1976, s. 3A(4)).Footnote 78 Unlike street bail, the custody officer must give reasons for imposing conditions, both orally and in writing (Bail Act 1976, s. 5A(2) and (3)).
The provisions governed by s. 47(1A) affect two distinct classes of people. Where an arrested person is taken to a police station, the custody officer must initially determine whether there is sufficient evidence to charge the person with the offence for which they were arrested (s. 37(1)). If the officer decides that there is insufficient evidence to justify a charge they must release them (on bail or without bail) unless detention is necessary for the purposes of the investigation. It was held in R (Torres) v Commissioner of Police of the Metropolis Footnote 79 that release on conditional bail under s. 37(2) is possible at any point during police detention where the custody officer has not (yet) determined that there is sufficient evidence to charge. Thus conditional bail, including a surety or security, can be imposed on a person where there is no more evidence that they committed an offence than that required for the purposes of arrest. The second class of person is that where the custody officer has determined under s. 37(7) that there is sufficient evidence to charge. In these circumstances, the officer can bail the person pending a charge decision by a Crown Prosecutor (s. 37(7)(a)(i)), or can bail them “not for that purpose” (s. 37(7)(b)). The latter provision enables the custody officer to bail a person where they wish to continue the investigation or, for example, to allow consideration to be given to a conditional caution.Footnote 80 It should be noted that the meaning of “sufficient evidence to charge” is both problematic and controversial.Footnote 81 The current version of the DPP's Guidance on Charging Footnote 82 provides that in determining whether there is sufficient evidence to charge under s. 37 for the purpose of deciding whether to refer the case to a Crown Prosecutor for a charge decision, the custody officer should apply the Threshold Test. This test is defined as an “assessment of whether… there is at least a reasonable suspicion against the person of having committed an offence… and that at that stage it is in the public interest to proceed”.Footnote 83 Thus, apart from the public interest element, the threshold for deciding whether to bail a person under s. 37(7) is, as with bail under s. 37(2), potentially no higher than that required for the initial arrest.
Consequently, a person can be subjected to conditional bail, whether street bail or bail from a police station, in circumstances where, at most, there is only a reasonable suspicion that they have committed an offence. In fact, since some arrest powers do not require reasonable suspicion, that is those under the PACE 1984, s. 24(1)(a), (b) and (3)(a), a person can be subjected to conditional bail even though the grounds for suspicion do not satisfy the requirements of reasonable suspicion. In any event, the case law on reasonable suspicion sets a very low threshold,Footnote 84 and in forming a suspicion the officer can rely on hearsay and other information that would not amount to admissible evidence.Footnote 85 Research evidence suggests that even this low threshold does not impose a significant limitation on the police, leading Sanders and Young to conclude that it “is such a low threshold that most arrests are based on weak evidence, and many are based on virtually no evidence”.Footnote 86
III. Key Features of Police Bail without Charge
As noted earlier, when the power of the police to grant pre-charge bail was first enacted it was regarded as being beneficial to suspects, enabling them to be released from custody, and possibly avoid a court appearance altogether. However, pre-charge bail then operated in a significantly different context than in the modern era. Arrest applied at a different point of an investigation in 1925. Arrest would have occurred at the end of a police investigation, when it was necessary to bring a person before a court,Footnote 87 or because a judicial warrant had been issued.Footnote 88 As recently as 1970 Lord Devlin observed that “as a general rule […] an arrest should not be made until the case is complete”.Footnote 89 As a result, police bail was a short term convenience. Today, however, an arrest is usually the starting point in an investigation.Footnote 90 All that need be sufficient for the arrest to take place is, at most, a “reasonable suspicion”Footnote 91 which, as demonstrated earlier, amounts to a low threshold that in practice is often ignored. As arrest has migrated within the investigative phase of criminal investigation, so that it may now be exercised at the inception of an investigation rather than at the end, the power to bail persons arrested has taken on a different character. Rather than being used for short periods in a manner protective of liberty it now has the potential, as Liberty pointed out, to be used by the police as a tool to control suspects for lengthy periods of time.Footnote 92
Nevertheless, might it not be argued that police bail, particularly when it is granted unconditionally, continues to fulfill a function that enhances the liberty of the suspect? It is often assumed that a person released on bail is simply at liberty, and that bail thus enhances liberty. Clearly such a person is no longer in detention or imprisoned,Footnote 93 but are they at liberty? Historically, a person on bail was described as being “at large on bail”, and their condition was described as being in a “living prison”.Footnote 94 The surety was, in effect, a gaoler or keeper of the principal. In fact so entrenched was the position and function of the surety that where the accused did not have any sureties the gaol was, in effect, considered to be the surety.Footnote 95 Bailed defendants were considered to be in custody.Footnote 96 Thus, for instance, Babington J concluded that “he who is all the time under bail, the law adjudges him in prison”.Footnote 97 Moreover, “the bail have their principal always upon a string, and may pull the string whenever they please”.Footnote 98 The admission to bail was therefore only a change in custody.Footnote 99 This traditional view of bail was to some extent undermined by the Bail Act 1898, which empowered justices to dispense with sureties if they decided it was in the interests of justice to do so,Footnote 100 and the Bail Act 1976, under which bail is to be normally granted without sureties.Footnote 101 However, this does not mean that being “at large on bail” can simply be equated with being at liberty or, indeed, that bail should necessarily be seen as enhancing liberty.
As noted earlier, a person who has been granted bail by the police can be arrested if they fail to surrender on the due date. If conditions are imposed, they can be arrested for failure to comply with those conditions.Footnote 102 There is no time limit on street bail or pre-charge bail, and in respect of the latter no limitation on repeated releases on bail.Footnote 103 Proposed amendments to the Police and Justice Bill, which would have limited conditions attached to street bail to a maximum of 72 hours, were rejected by the government.Footnote 104 In the absence of official statistics or research evidence on the use of police bail, we have to rely on anecdotal evidence. This suggests that it is not unusual for suspects to be released on pre-charge bail for six months, and in some cases for them to be re-bailed for similar periods on a number of occasions. Prolonged release on pre-charge bail was unsuccessfully challenged in R (C) v Chief Constable of A and A Magistrates' Court.Footnote 105 The applicant, having been arrested in connection with offences concerning child pornography, was then bailed without charge for a period exceeding six months.Footnote 106 He argued, inter alia, that this imposed severe restrictions on his business activities which frequently took him abroad. The Divisional Court, whilst stating that it was not the case that it would never intervene in a criminal investigation, said that intervention would only be appropriate in the most exceptional circumstances, and this case did not satisfy that requirement.
Despite the fact that police bail may have serious implications for the liberty of the suspect, both street bail and pre-charge bail are available irrespective of the seriousness of the suspected offence and, therefore, conditional bail can be imposed however minor the offence for which a person has been arrested and/or detained. Indeed, in the case of street bail, Home Office Circular 61/2003 discourages its use in more serious cases, stating that it is unlikely that it would be granted “in relation to a serious arrestable offence”.Footnote 107 In order for conditions to be imposed, the relevant officer must simply consider that they are necessary for one or more of the statutory purposes. It was held in R v Mansfield Justices ex p Sharkey,Footnote 108 in relation to bail conditions imposed by a court, that the perceived risk must be real, and not merely fanciful. Although similar principles should apply to police bail, the process by which the bail decision is made does not allow for the necessity of the conditions to be tested. There is no provision (either in statute or the PACE Codes of Practice) for the suspect to make representations, either about bail itself or as to conditions.Footnote 109 Even if they are able to make representations, there is no obligation on the police to take them into account in making their decision. Although reasons must be given for any conditions imposed on pre-charge bail, this is not the case for street bail, and there is no obligation on the police to articulate grounds for the decision to bail.
In its report Bail and the Human Rights Act 1998 the Law Commission emphasised the importance of proportionality in relation to the imposition of bail conditions.Footnote 110 Since, as noted earlier, the police have the power to arrest for any offence however minor, and given that conditional police bail is available where a person has been arrested in respect of any offence, the issue of proportionality is left to each individual officer making a bail decision. This is stressed in the policy guidance issued by a number of police forcesFootnote 111 but the Home Office Circular on street bail, whilst requiring that officers use the power “fairly, objectively and without any bias against ethnic or other groups within the community”,Footnote 112 makes no explicit reference to the need to apply bail powers in a proportionate way.Footnote 113 This is of particular importance in respect of street bail because the bail decision is made by the arresting officer, who will normally be of constable rank (as compared to a custody officer at a police station who must normally be of the rank of at least sergeant),Footnote 114 and in circumstances where none of the due process safeguards that apply at a police station, such as the requirement to make a record of the decision in the custody record,Footnote 115 custody suite CCTV, and access to legal advice, are available or applicable.
IV. Police Bail and the ECHR
Article 5 (1)(c) ECHR permits a deprivation of liberty by “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”; provided always that this is in accordance with a procedure prescribed by law. However, this power to interfere with liberty is circumscribed by Article 5(3) which provides that where a person is so arrested or detained they “shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial”. The European Court of Human Rights (ECtHR) has consistently held that the purpose of Article 5 is not only to prevent incommunicado detention but also arbitrary deprivations of liberty by the police and other agents of the state.Footnote 116 Given that Article 5 is a right of primary importance in a democracy,Footnote 117 a person is “not to be deprived, or to continue to be deprived, of their liberty save in accordance with the conditions specified in paragraph 1 of Article 5 … [and that] list of exceptions … is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty”.Footnote 118 Where a person is suspected of having committed a criminal offence there is a balance to be struck between the liberty of the individual, who is presumed to be innocent, and the interests of the state in the administration of justice, which includes the prosecution of offenders. A court of law or judicial officer provides an independent and impartial mechanism by which these conflicting interests can be fairly and impartially weighed.
Closely associated with the right to liberty is the presumption of innocence.Footnote 119 Judicial bail and, indeed, bail following charge plays a vital role in protecting the presumption of innocence. As Vinson CJ put it “unless the right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning”.Footnote 120 The presumption of innocence is more than a mere rule of evidence;Footnote 121 it is a bulwark against the imposition of punishment before conviction. It is often asserted, particularly in common law jurisdictions, that the guarantees of Article 6, and thus Article 6(2), apply from the point of charge. However, it has been recognised in domestic law that some of the guarantees of Article 6 also have application at the pre-charge stage.Footnote 122 The ECHR has also ruled that Article 6(2) can apply prior to the point at which formal criminal proceedings are commenced,Footnote 123 and thus the application of the presumption of innocence is not limited to trial proceedings, but covers also the investigatory phase. Thus it has been held that that Article 6 can be engaged when a person is “substantially affected” by criminal proceedings.Footnote 124 Furthermore, the ECtHR has interpreted Article 5(3) as protecting the presumption of innocence. The guarantee in Article 5(3) applies irrespective of whether the authorities have charged someone or not: “Article 6(2) governs criminal proceedings in their entirety”, from the point of arrest through to the determination of guilt.Footnote 125 As Duff remarks, the presumption “requires courts to see the defendant as a citizen who has committed no criminal wrong unless and until it is proved that she is guilty of a particular wrong”.Footnote 126 The suspicion that a person might have committed a crime “does not warrant treating him as guilty”.Footnote 127
The presumption of innocence is relevant not just in relation to remands in custody but also to bail conditions. Under the ECHR bail conditions can only be lawful if they respect the presumption of innocence. Preventative pretrial restrictions on liberty that are predicated on the assumption that they are necessary to prevent further offending are incompatible with the presumption of innocence.Footnote 128 Thus in Nerattini v. Greece Footnote 129 the applicant had been refused bail by the Samos Criminal Court, in part because it feared that if released he would commit similar offences on bail.Footnote 130 Even before the applicant had been charged or convicted the Court refused bail on the basis that he showed a “propensity to commit further offences relating to antiquities”.Footnote 131 The ECtHR held that this prejudicial labeling constituted an interference with the presumption of innocence. The presumption of innocence, of course, may be infringed by statements and actions of public authorities other than courts.Footnote 132 “The presumption of innocence”, the ECtHR held in Garycki v Poland, “will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law … It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty”.Footnote 133 This is particularly important where the officer in question is exercising quasi-judicial functions.Footnote 134 Consequently it is arguable that the imposition of conditional bail by police officers could in some cases be contrary to the presumption of innocence; and where an officer attaches conditions that are not trial related there is an attendant risk that the resulting prejudicial aura of guilt may undermine the presumption of innocence of the suspect in any subsequent judicial proceedings.
A. Prompt production before a judge
European Court of Human Rights jurisprudence on Article 5(3) requires that production before a judge be both automatic and prompt.Footnote 135 Within the terms of Article 5 once a person is arrested or detained the temporal guarantees begin to run.Footnote 136 Article 5(3) does not refer to arrest and detention, but to arrest or detention. Therefore, it would seem that the judicial review required by Article 5(3) is triggered by the arrest (or detention) itself. This is nothing out of the ordinary since it is little more than a statutory articulation of the old English common law practice whereby an arrest was a mechanism for producing a person before a court. Article 5 does not provide for any exception that authorises the conditional release of an arrestee or detainee who, even on police bail, continues to be substantially affected by proceedings against him and thus within the protective ambit of both Article 5Footnote 137 and 6.Footnote 138
Nothing in Article 5(3) excuses the state from bringing a person arrested within the terms of Article 5(1)(c) promptly before a judge of judicial officer.Footnote 139 This obligation does not apply where a person is arrested or detained for the purpose of securing the fulfillment of an obligation prescribed by law, which is a permissible interference with liberty under Article 5(1)(b). The government argued that this, inter alia, was a reason why street bail would not contravene Article 5 rights.Footnote 140 However, the power to impose street bail applies where a person has been arrested for an offence (thus coming within Article 5(1)(c)), not where a person has been arrested in order to secure the fulfillment of an obligation. It is the purpose of the arrest which is relevant to whether this exception to the right to liberty applies, not the purpose of the obligation.
Although Article 5(3) makes no reference to such a possibility, the police are almost certainly absolved of the responsibility of prompt production if the person is “de-arrested”, that is, released without bail and unconditionally.Footnote 141 However, release on police bail can hardly be regarded as a “de-arrest” and it is not recognised as such by PACE 1984. As noted earlier, even if no conditions are attached to bail the person is under a legal duty, on pain of criminal sanction in the case of pre-charge bail (but not street bail), to surrender to bail on the due date, and failure to surrender may result in their further arrest. Under English law there is no automatic judicial review of the arrest or bail decision. In fact, there is no review of an arrest at all unless the arrestee commences legal proceedings for that purpose, or argues for exclusion of evidence on the grounds of unlawful arrest in a criminal trial. With regard to a police bail decision, there is no automatic judicial oversight. If it is unconditional, the person bailed may bring judicial review proceedings, but the courts have demonstrated a marked reluctance to intervene.Footnote 142 In the case of conditional street bail the bailed person cannot even make an application to a court to review any conditions imposed until they have, at least, requested the police to vary the conditions.
It might be argued that the drafters of Article 5 accurately reflected policing practice at the time that the Convention was drafted,Footnote 143 and did not anticipate either the requirements of modern policing with its need, in some cases, for lengthy investigation commencing with an arrest, or the statutory sanctioning of this development without the parallel development of safeguards to ensure the power was not abused. However, if the silence of the Convention is accepted as a justification for avoiding the need for prompt judicial review of arrest decisions where police bail is granted it would mean, in effect, that arbitrary or disproportionate arrest and bail decisions can be made with impunity. If our interpretation is correct, it would be open to the police to bail someone without having charged them provided that the judicial supervision that Article 5(3) requires is satisfied within the time frame tolerated by that Article.Footnote 144 This would have been the de facto position when pre-charge police bail was first enacted in the early part of the twentieth century, but as we have demonstrated, arrest now has a different function within the criminal process.
B. Production before a judge or judicial officer
A further argument is that the police are acting quasi-judicially when they grant bail, and that this satisfies the requirements of Article 5(3). However, although an officer authorised by law to exercise judicial power, within the terms of Article 5(3), is as the ECtHR observed in Schiesser v Switzerland, not necessarily identical with a judge he “must nevertheless have some of the latter's attributes … that is to say he must satisfy certain conditions each of which constitutes a guarantee for the person arrested”.Footnote 145 The quasi-judicial officer must be independent of the executive and the parties. Moreover, he must discharge the procedural and substantive requirements of Article 5(3). The quasi-judicial officer must hear representations from the arrested individual,Footnote 146 and he must decide whether the circumstances of the case justify detention, conditional release or unconditional release. This substantive decision must be undertaken against legal criteria.Footnote 147
A custody officer, who is the officer responsible for making pre-charge (but not street) bail decisions, is clearly not “an officer authorised by law” within the test set out in Schiesser. Although by the PACE 1984, s. 36(5), a custody officer must not be involved in the investigation of the person in respect of whom a bail decision is to be made, he is of relatively low rank and normally works in the same police station, and for the same police force, as the officer carrying out the investigation. The custody officer's discretion to grant bail is to be exercised in accordance with guidance produced by the Director of Public Prosecutions, a party to any subsequent criminal proceedings.Footnote 148 The institutional closeness that this regime inevitably creates between the custody officer and the prosecutor hardly enhances the independence of the former.Footnote 149 Furthermore, the custody officer has a conflicting role.Footnote 150 On the one hand he has to act effectively as judge in his own cause, by determining whether the police have sufficient evidence to proceed with a case, and on the other he has to consider whether a suspect should be released. In such circumstances he can hardly be said to be independent of the parties in the manner that Article 5(3) requires.Footnote 151 Research evidence as to the practice of custody officers, as Hucklesby notes, shows that they routinely confirm the decisions and actions of the investigating officers.Footnote 152 As the ECtHR made clear in Salov v Ukraine,Footnote 153 an investigating prosecutor under Ukrainian law is not “an officer authorised by law to exercise judicial power” for the purposes of Article 5(3). That must equally be true of the custody officer in England and Wales.Footnote 154
With regard to street bail the situation is in many ways even more unsatisfactory. The officer making the bail decision is the officer who has carried out the arrest, and the decision will be made away from the police station and normally, literally, in the street. The streets have a different dynamic than police stations. It is a setting in which police officers exercising powers are not only unsupervised but are also in a disproportionately stronger position vis-à-vis the suspect.Footnote 155 Moreover, the constable is not even under the direct supervision of the courts in the case of street bail since, as noted earlier, a suspect who wants to have his bail conditions reviewed must, in the first instance, apply to a custody officer at the designated station and not to a magistrates' court.Footnote 156
V. Bail Conditions
We have argued that the legislative arrangements governing street and pre-charge police bail contravene the requirements of Article 5(3) ECHR. If that argument does not find favour, we argue in this section that conditional street and pre-charge police bail may, nevertheless, amount to a breach of ECHR rights in particular circumstances. Whilst our focus is particularly on Article 5, conditional police bail may raise questions about breach of other Convention rights, particularly the right to private life under Article 8, the right to freedom of expression under Article 10, and the right to freedom of assembly and association under Article 11. The ECtHR has long held that “if a law confers a discretion on a public authority it must indicate the scope of the discretion”.Footnote 157 The absence “of any details at all as to the kind of restrictions permitted or their purpose, duration and extent or the arrangements of their review”Footnote 158 will not be compatible with the principle of legality. Such unconstrained powers lack the minimum degree of protection against arbitrary interferences with Convention rights.Footnote 159 The principle of legality not only requires that there be a legal basis for the interference with Convention rights, but also that the law has certain qualities.Footnote 160 First, the law must provide sufficient notice as to when and how a public authority can resort to a restrictive measure. Second, the law:
must afford a measure of legal protection against arbitrary interference by public authorities with the rights guaranteed by the Convention … [I]n matters affecting fundamental rights it would be contrary to the rule of law for legal discretion granted to the executive to be expressed in terms of unfettered power … [C]onsequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, in order to give the individual adequate protection against arbitrary interference.Footnote 161
The danger is that unconstrained powers allow arbitrary interferences with Convention rights. Such powers may be used for purposes that are neither necessary, nor within the original purpose.Footnote 162
Pre-charge police bail (both street bail and bail from the police station) with conditions attached could, in certain circumstances, present such problems. For instance, the police might impose restrictions on demonstrators that are, in effect, the same as a bind-over by a magistrates' court. Not surprisingly, for some police officers, “bail conditions are seen as levers of power over defendants … Conditions might be added to police bail legitimately as … negotiating mechanisms, for example, in return for favours such as intelligence gathering [or] as summary punishment to be meted out in the relative privacy of the police station on those who otherwise might have been granted unconditional bail”.Footnote 163 Moreover, as Choongh has demonstrated, the police use the legal canopy of powers to shield their control of what they consider to be deviant populations. Police powers and the custody suite constitute the criminal justice system for such people; a legal twilight zone. Police bail without charge may amount to a power, par excellence, for disciplining such people since it may be used at a time or in circumstances where there is no intention to charge them, and thus bring them into the legal system proper.Footnote 164 This is not something that sits comfortably with the requirements of the Convention with its avowed prohibition of arbitrary interferences with Convention rights; guarantees that are to be real and effective not theoretic and illusory.Footnote 165
In order to ensure that discretionary powers are exercised appropriately the Convention requires that they are accompanied by effective safeguards.Footnote 166 Such safeguards have a number of benefits. Safeguards can prevent discretionary powers being used in a way that is discriminatory.Footnote 167 Similarly, because a broad discretionary power makes it difficult to know in what circumstances a person may legitimately complain about the exercise of the power, clearly defining the power enables effective ex post facto review and scrutiny.Footnote 168 In turn, that ensures the lawfulness of any interference with Convention rights. If conditions are to be imposed, both in respect of street bail or pre-charge bail, the officer must consider them “necessary” for one or more of the statutory purposes.Footnote 169 Whilst conditions must be necessary for one of these primary purposes the police have a wide discretion to attach ancillary conditions purportedly to support the primary one.Footnote 170 So conditional bail might be viewed as necessary to prevent offending, and primary conditions attached in order to achieve that, but an ancillary condition may additionally be imposed to ensure that a primary condition is effective. However, simply because there is a correlation between primary and ancillary conditions does not mean that the latter are compatible with the ECHR.Footnote 171 The ancillary conditions might have a legitimate aim but that alone does not make them proportionate.
The problem here is that not only are the primary heads of justification for bail broadly defined, for example the prevention of further offending, but also that the discretionary powers to impose ancillary conditions are also expressed in open-ended terms. The latter is exacerbated by the fact that there is also no statutory guidance on how the power to impose conditions is to be exercised, and what conditions might be appropriate or acceptable. The guidance that is available is scattered across various sources such as Home Office circularsFootnote 172 and Association of Chief Police Officers (ACPO) guidance. Arguably, this non-statutory guidance does not satisfy the requirement of legality inherent in the Convention,Footnote 173 and as such cannot be used to justify decisions regarding bail conditions. The absence of proper guidance for a statutory discretionary bail power was held by the European Court in Gatt v Malta to be incompatible with Article 5(1)(b) on the grounds that the unguided exercise of the power could lead to arbitrary and disproportionate results.Footnote 174
Furthermore, with such a wide discretionary power it is not surprising that the police may impose conditions that, in themselves, curtail a range of Convention rights.Footnote 175 Thus it is possible that an individual be made subject to police bail conditions that are sufficiently restrictive of their liberty to amount to a deprivation of liberty under Article 5 ECHR.Footnote 176 Curfews, for example, have the potential to infringe Article 5.Footnote 177 A curfew can shade into house arrest, becoming in effect more restrictive than an open prison.Footnote 178 Where someone is subject to a curfew that lasts longer than sixteen hours a day they are in effect imprisoned.Footnote 179 It is interesting, in passing, to contrast the position of suspects on police bail with those on court bail. Where an individual is remanded on bail by a court, the time spent subject to a curfew can be taken into account when discounting any sentence imposed following conviction.Footnote 180 No such considerations apply in the case of police bail.
Where a person is suspected of domestic violence the police may well impose bail conditions that prevent the suspect from staying at his home address or indeed visiting the family home.Footnote 181 There may, of course, be good reasons for such ancillary conditions. However, any such conditions are a serious interference with the right to a home life as guaranteed by Article 8 and should not lightly be imposed on an individual who has not been found guilty of an offence and indeed is presumed to be innocent. Yet the Home Office/ACPO Guidance on the Safer Detention and Handling of Persons in Police Custody states that such conditions should be considered automatically in cases of alleged domestic violence.Footnote 182
There is nothing in domestic law to prevent the police from imposing association restrictions as a form of summary punishment which, as Raine and Wilson argue, is something that is done by magistrates' courts.Footnote 183 For instance, members of the campaign group “Global Rush” were arrested for gluing themselves together in Parliament as a form of protest. Group members were subsequently bailed by the police with the condition that they did not “directly or indirectly” communicate with each other.Footnote 184 Such police bail conditions clearly have the potential to interfere unjustifiably with political rights and freedoms guaranteed by Articles 10 and 11 ECHR. Furthermore, the availability of street bail powers means that officers policing unpopular demonstrations now have a new low level discretionary power that effectively enables them to disperse and control demonstrators in a draconian way with little oversight.Footnote 185
VI. Conclusions
Police powers to impose bail, conditional or unconditional, on people who have not been charged with a criminal offence suffer from considerable and serious procedural deficiencies. The suspect has no, or limited, right to be given information as to why bail or bail conditions are considered to be necessary, and has no right to make any representations regarding either bail or conditions. Even if they are able to make representations, the officer making the decision is under no obligation to take them into account. There are very few limitations on the conditions that can be imposed, and no special provisions for juveniles or other vulnerable suspects. Conditional bail is not limited by reference to the seriousness of the suspected offence, and there is no time limit on the period for which bail can be imposed. Judicial involvement is limited to varying or removing conditions, does not in practice extend to the decision to bail itself, and is available only at the instance of the suspect. As a result, in terms of procedural justice, a suspect who has not been charged with a criminal offence is at a significant disadvantage compared to a person who has.
We have argued that these powers fail to meet the requirements of Article 5 and, in particular, Article 5(3) ECHR. The Convention requires that following arrest a person must promptly be brought before a judge or other judicial officer. Whilst Article 5 does embrace the notion of conditional release, this is only at the instance of a judge or judicial officer. A police officer cannot be a judicial officer for this purpose, and the police are not absolved from the obligation of prompt production by granting them bail. The purpose of the requirement of prompt production is not only so that a decision about release may be made, but also to enable the legality (which would include the proportionality) of the arrest to be judicially reviewed. Even if the provisions do not, per se, breach Convention rights then their use in particular circumstances may amount to a breach of rights under Articles 8, 10 or 11 and, in either case, their use may be discriminatory contrary to Article 14. The prospects of successful challenge in respect of the latter is fundamentally undermined by the failure to require the routine collection of police bail statistics.
It could be legitimate for the police to bail an arrested person who has not been charged provided that the prompt production provisions of Article 5(3) are complied with. In this way police bail could return to its original purpose, namely that of liberating the individual pending imminent judicial process. One way of doing so would be to provide that where bail is granted, whether or not conditional, for a period exceeding four daysFootnote 186 the case is automatically referred to a magistrates' court for review. The court would have powers to consider the legality of the arrest (and thus ensure compliance with Article 5(1)(c) and (3)), the need for bail (as opposed to unconditional release), and the necessity of the conditions. In doing so, the court would be required to consider whether both bail, and bail conditions, are proportionate given the seriousness of the offence under investigation. Such a procedure would be more difficult to apply in the case of street bail, but there are strong arguments for abolition of street bail. It appears that the police are not generally well disposed to street bail, especially with conditions, and it is difficult to justify arresting officers having such powers.
As we have demonstrated, police powers to bail persons who have not been charged with a criminal offence are by no means new. However, the development of the police role in the investigation of crime, with the consequent change in the role of arrest, together with the relatively new powers to impose conditions, has substantially altered the nature of these powers. The police now have extensive powers to control and supervise people who have not been found guilty of any offence. Those powers are subject to limited judicial oversight and, in the absence of evidence as to their use, limited public accountability. It is surely time for them to be fundamentally revised.
