Released Under Investigation or Police Pre-Charge Bail?

The delays in the Criminal Justice System are well known. The system running from the start of an investigation by the Police through to a case conclusion in Court is suffering from delays exacerbated the Covid pandemic but is also the outcome of significant cuts in the system, both going back beyond the pandemic. The result being delays for all those impacted, whether that be those accused of a crime, or those who are alleged victims, witnesses and the professionals that work in the system.

It can serve no purpose to society for there to be severe lags in the resolution of criminal cases. It is crucial that there be fairness to anyone accused of a crime in being able to advance their case thoroughly, and without any prejudicial effect on them. Delays can lead to important evidence being lost through the passage of time, memories or recollections of crucial witnesses, both for the Court or the defence being diminished.

One area that the Criminal Defence team at Woodfines are seeing significant delays in is between the original arrest and/or voluntary interview under caution and a decision being made by the Police or the Crown Prosecution Service as to what, if any action, is to be taken. This is called the “Pre-Charge Decision” stage and it is a stage where the police are required to gather all evidence, by acting impartially in the investigation and where applicable passing that evidence to a Crown Prosecutor, for them to decide whether there is a case that merits on evidential and public interest grounds the continuance of the case before a Court. During this period those accused of crimes can be found to be entirely innocent or those who need to will be brought before a Court. Regardless of the Pre-Charge stage outcome, the delays are lengthy and cause significant trauma and anxiety.

Often those accused of an offence are placed on Police bail whilst that decision is awaited. This can include a multitude of conditions that may include no contact with a family member or not to go to a particular address or area of a town. Sometimes that can include restrictions on their movements overnight or from travelling away from the Country. Regardless of the condition, this is a restriction of somebody’s liberty. Whilst it can be argued that somebody accused of an offence ought to be placed under a form of restriction, it must be borne in mind that many people who face an allegation do not subsequently face Court proceedings let alone end up being convicted of an offence.

The Police are able to place people on Police bail for a period of time before having to apply to a Court for an extension. The Criminal Defence team here at Woodfines are seeing many instances where the Police have not made their decision in conjunction with the Crown Prosecution Service during the bail period or even any extended period granted by the Court. This can mean delays of well over a year before somebody finds out their fate. When somebody is placed on Police bail, they must attend a Police Station to answer to that bail at given times. They must also of course comply with the conditions set.

There are situations where the Court or the Police decide that the continuation of a bail period is no longer lawful or required, then the suspect can be released under investigation. This does not mean that the investigation finishes but merely that they are released from any bail conditions or under any obligation to attend at a Police Station at a given date. This can lead to additional confusion with those accused who feel that they may have been released fully from the investigation at that stage, but they have not. It simply means that the investigation goes on in the background and once the Police and/or the Crown Prosecution Service eventually make their decision, they will be notified that they are to be prosecuted, or that there is no further action. One worry about that process is that there is no longer a date imposed on the Police for them to resolve the case and in cases where there is no time limit applicable, we have seen investigations last longer than 24 months. This is simply damaging for the interests of the case, whether that be as the accused or the accuser.

During the period of either Police bail and/or being released under investigation, where the case has gone to the Crown Prosecution Service, it is possible for representations to be made to the Crown Prosecution Service with regard to any points an accused wishes to make when they are deciding whether to bring a case. This is a little-known process but one that can be highly effective in:

1. Bringing to the attention of the reviewing lawyer for the Crown Prosecution Service points of law or evidence that may lead them to take no further action or;
2. To provide important explanatory material that places the incident into context.

Moreover, by enabling there to be correspondence between those acting for the accused and the Prosecution Authority it enables the case to continue to be chased and moved along to as speedy an outcome as possible.  We frequently deal with persons that have been summonsed or charged many, many months after the original allegation. At that stage, some important evidential features may have been lost or not preserved.

It is important to obtain early advice if you are subject to either bail or have been released under investigation to enable enquiries to be undertaken, where applicable in a case, in order to secure and preserve evidence that may become crucial to the case longer term. We often work with the Police in providing them with information on behalf of a client who is accused of a matter to invite them to carry out those important enquiries, as it may assist them in reaching a quick decision that the matter should not be taken any further.