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23 July 2015 / by / in ,

Bail reform – necessary, but proportionate?

A common complaint from those under investigation for serious and complex fraud offences in the UK is the length of time that such investigations take to reach the point of charge. Delays often running into years constitute a major blight on the lives of suspects and their families. This is especially the case where they are arrested and released on police bail which may include the imposition of conditions that restrict their liberty.

 In recognition of this unsatisfactory state of affairs the Home Secretary recently announced the following reforms:

 – A presumption to release without bail, with bail being imposed only when it is both necessary and proportionate;

 – Establishing a framework for the regular review by the courts of pre-charge bail;

 – Introducing formal guidance on the imposition of conditions; and

 – Collecting consistent data on the use of pre-charge bail as part of the Annual Data Requirement (ADR) process and publishing it.

Presumption against release on bail

It is probably safe to assume that most serious fraud investigations will be construed as satisfying the criteria for the imposition of police bail. Necessity is likely to be determined by the same factors as applied under the Bail Act for persons being released from custody (eg risk of absconding, risk of further offending and interference with witnesses). Whether bail in such cases is deemed “proportionate” will presumably be determined by engaging in a process of balancing the necessity for bail against the seriousness of the offence. Invariably in serious fraud investigations both boxes will be ticked.

Practitioners can point to examples where clients have been placed on police bail for inordinate periods of time. The extra scrutiny proposed by the reforms is to be welcomed in such cases. However, one suspects that in practice investigators will continue to treat suspects as volunteers and thus circumvent both the PACE Codes and the proposed procedures.

Framework for regular reviews of pre-charge bail.

In standard investigations the proposal is for an initial period of 28 days. This can be extended by an officer of the rank of Chief Superintendent or above for up to a further 3 months. Any further extension would require an application to be made to the Magistrates Court. There is no upper limit on the period for extensions.

 However a lighter touch is proposed in “exceptional cases”. The likelihood is that such cases – although currently undefined – will include those prosecuted by the SFO and the CPS (Complex Crime Unit). The decision to extend bail beyond an initial 3 months will lay with a senior civil servant (SFO) or Assistant Chief Constable (CPS). Thereafter the decision would rest with the Magistrates Court.

This represents something of a compromise in that it recognises that serious and complex fraud cases require more time to be properly investigated (It is in no one’s interests for a decision to charge to be made in haste), nevertheless it imposes a degree of scrutiny to prevent unreasonable delay.

Time spent by the CPS/SFO reviewing the evidence and advising on charge is not to be included in the pre-charge bail period. This is disappointing as such a review makes up a significant chunk of the pre-charge period and is not to be subjected to objective scrutiny.

Introducing Formal Guidance for the imposition of bail conditions

The police have been able to impose conditions of bail for some 12 years. Formal guidance on this practice is thus long overdue. At present a consultation with the College of Policing and senior members of the judiciary is the limit of the proposal.

Collecting consistent data on the use of pre-charge bail as part of the Annual Data Requirement (ADR) process and publishing it

There is general recognition of a need to monitor the use of pre-charge bail and its        impact on the investigative process.

 Shortcomings of the Proposed Regime

1. The lack of any formal guidance on how custody officers should determine whether it is necessary and proportionate to grant bail makes it very difficult to predict the likely impact of the proposed reforms in practice;

2. The “lighter touch” required in exceptional cases will lessen the impact of the reforms in serious and complex investigations. More pertinently the failure to extend any form of external scrutiny to investigations where suspects are treated as volunteers will negate their impact all together in the majority of investigations into serious fraud offences;

3. The failure to include CPS/SFO review time in the pre-charge period makes no logical sense and means that one of the main causes of delay is not scrutinised;

4. The refusal to impose a blanket ban on pre-charge publicity means that the risk of serious reputational damage (one of the main complaints about extended periods on bail) is not addressed.

Investigations into serious and complex matters can take years to reach the point of charge. Investigators in such cases often seek to completely circumvent the legal constraints imposed on them under PACE by treating suspects as volunteers before charging them. There are a number of reasons why suspects prefer to be treated in this way:

  – Avoiding being processed in the police station as a detainee which involves, inter alia, a formal search; the opening of a custody record; the provision of fingerprints, photographs and DNA samples and possibly detention in a police cell;

 – Avoiding having to disclose the fact of an arrest to a professional regulator (such as the FCA) and possibly also to immigration officials if travelling abroad;

 – Avoiding the imposition of onerous bail conditions such as surrendering one’s passport;

 – Avoiding reputational damage from adverse publicity – the Home Secretary having resisted the temptation to impose a blanket ban on pre-charge publicity as she was urged to do from certain quarters.

It is thus often to the mutual advantage of the investigator (juggling finite resources) and the suspect for an investigation to be conducted “under the radar” on a voluntary basis. This practice is not going to be affected by the proposed reforms.

Impact on investigations into financial crime

 The impact of the proposed reforms on the use of police bail is a matter of speculation until we see how it works in practice. It is most likely to “bite” in shorter investigations where delay is more difficult to justify. However, in longer investigations, where the logistical demands are that much greater, one can be somewhat sceptical about the likely impact.

The impact of the proposed reforms on suspects facing investigation into serious financial crime is, in my submission, likely to be negligible. Had the Home Secretary extended the external scrutiny to all investigations whether on bail or      otherwise then one might have expected a significant reduction in the delays that are currently experienced.

 However, perhaps ironically, the imposition of external scrutiny on the “exceptional cases” albeit with a “lighter touch” may in practice result in an increased use of volunteer status by agencies who simply do not have the resources to complete investigations within what might generally be considered a reasonable time frame. For suspects the advantages of being treated as volunteers will continue in most cases to outweigh any perceived advantages of speeding up investigations by exposing them to regular review.

Originally published in Fraud Intelligence at http://www.counter-fraud.com/

Stephen Sharp

Steve heads the Business and White Collar Crime team at Bivonas Law and specialises in defending white collar crime cases. He has defended in cases brought by the Serious Fraud Office (SFO), HM Revenue and Customs, Department of Business Innovation and Skills (BIS), the Economic Crime Unit (ECU), NHS Counter-Fraud Service and the Crown Prosecution Service (CPS).

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