During a police investigation, once a suspect has been identified and interviewed (whether under arrest or not), the police must decide what to do with him or her next. If the police are not yet able to charge the suspect they must release him or her. Typically there will be further enquiries to be made, or the file will be sent to the Crown Prosecution Service for a charging decision. Both of these take time.
For many years this pre-charge release took the form of police bail. A suspect was given a time and date to return to the police station. They also may have had some conditions to observe, such as non-contact with the Complainant. However pre-charge bail became problematic as Austerity-driven cuts began to bite in the early 2010’s, and suspects were routinely finding themselves on police bail for months or even years at a time.
Following a string of high-profile cases (perhaps most notably Paul Gambaccini who spent over a year on police bail for sexual offences before being told he would face no further action) this issue was brought fully into the public spotlight. The Police and Crime Act 2017 was passed and brought with it a package of reforms to the treatment of suspects released pre-charge. The headlines were that the use of pre-charge bail would be limited to only those suspects who required the closest attention, and in all other cases suspects would be ‘Released Under Investigation’ (‘RUI’) without a fixed date to return or any conditions to observe. In principle this would protect their civil liberties while removing some operational pressure from the police.
However, measures which were designed to prevent suspects falling into legal limbo by relaxing regulation, when combined with the ongoing cuts to police and prosecutorial resources, in fact created a far greater problem. With bail dates no longer applicable investigatory deadlines were removed. The police could effectively work in their own time; which was itself becoming more and more scarce as their numbers and budgets were slashed. Investigations considered low priority could now be to be kicked into the long grass and suspects began to find themselves under investigation with little updates for years at a time.
Figures released earlier this year have shown that nationally 80% of suspects arrested are released under investigation. The average time then spent before a final decision is made is 139 days (the average length of police bail prior to the reforms by comparison was 90 days). Some cases go on for far longer than this; The London Criminal Courts Solicitors’ Association reported recently that in a sample of 109 RUI cases, more than 69 had been ongoing for between 18 months and two years.
One example of this arose just last week at Sheffield Crown Court during the sentencing of a young man convicted of supplying Class A drugs. The Judge’s remarks were widely published in the national press criticising the police and Crown Prosecution Service for taking almost two years between the suspect’s arrest and eventual charge. What aggravated matters more was that the evidence against the suspect had been strong (‘caught red handed’ according to BBC reporting), so in theory the investigation ought to have been simple and quick. The judge observed that "the police did nothing, they did absolutely nothing for 11 months." He said that the delay meant the defendant had been left "hanging" for almost two years to learn his fate.
Suspects may question what they can do if they find themselves released under investigation for long periods. . A proactive solicitor will chase the investigating officer on their client’s behalf for regular updates, If delays are unreasonable representations can be made to the officer and/or supervising officers to move things along. Any unfairness or prejudice to the person under investigation may be cogently set out and the reason or an explanation for the delay requested. There is no statutory obligation upon the officer to provide a regular update, but decency and fairness should lead to a response, and strong but courteous requests would be conducive to this.
The issues with RUI have been acknowledged by the government, which announced in November that a review would be taking place. However, the announcement did not specify when this review would happen, or if it is intended to propose legislation. Following the election the government has been bullish in its insistence that it will take a tough stance on crime. Further reform therefore seems inevitable.
Some have already argued for specific points:
- The Law Society has proposed that the police should be required to explain to suspects who have been ‘under investigation’ for more than four months why there is a delay in their case.
- The Joint Committee on the Draft Domestic Abuse Bill (which would become the Domestic Abuse Bill 2019) recommended legislation to create a presumption that suspects in domestic abuse cases are released from custody on pre-charge bail, unless it is clearly not necessary for the protection of the victim.
These are both sensible suggestions to be considered when the review eventually does take place. Until that time we now find ourselves somewhat ironically waiting for a final decision without a future date or deadline.