4. BAIL

Introduction

The Criminal Justice Act 2003 has introduced major changes to the system of granting bail due to perceived inadequacies in the charging procedure. Police now have new powers to grant ‘street bail’, without having to process the prisoner in the police station. In the majority of cases, the Crown Prosecution Service (CPS) rather than the police will in future take over decisions on whether to charge offenders. They will then have the power to charge suspects directly by way of the new ‘written charge’. Alternatively the police may issue the suspect with the new “conditional caution”. It will also be harder for defendants to get bail if they are already on bail for another imprisonable offence, and prosecution powers to appeal against such bail decisions have been increased.
We will look at each of these areas in turn.

“Street Bail" Powers of Police to grant bail elsewhere than at a police station

Up until the passing of the Criminal Justice Act 2003, the police had to take you to a police station as soon as reasonably practicable after arrest. The police did have the power to release you before getting to the police station, but in doing so they could not bail you to attend at a later date. Under the new law, the police now have new powers to release prisoners on bail before reaching the police station, under a duty to appear at a specified police station at a later date.

Points to Note

•This new power will significantly affect animal rights protests. In mass demo situations the police are often unwilling to make large numbers of arrests, as this means that police officers will be taken away from the scene for several hours to deal with them. Also as the venues for protests are frequently changed at the last minute, there is often no cell space available in the local police stations for large numbers of prisoners, creating more logistical problems. The new legislation will help the police to deal with these kinds of situations.
•The police will now be more willing to arrest larger numbers of protestors, knowing that they can take their details, and re-bail them to a later date. This will enable more police officers to stay at the scene of the protest and enable the CPS to review the evidence before deciding what charges if any to bring. It may well lead to larger numbers of arrests on demos.
•The police cannot attach additional conditions to the bail – they can only do this after charge.

Release on Police Bail

In recent years we have seen an increase in activists being released from custody without charge on police bail, with a duty to appear at a police station at a later date. This has been to enable the police to liaise with their lawyers and informally with the CPS before deciding which charges, if any, to bring. Nonetheless the police have still been responsible for charging suspects with offences and for compiling evidence against them. Under the new Criminal Justice Act 2003, the CPS will take over responsibility for charging in all but the most routine of cases.
The new law proposes that the police must receive general guidance from the CPS as to what charges if any to bring against suspects being held in the police station. If the police do decide to grant bail pending further enquiries, then the case will be automatically referred to the CPS who will make the decision on whether or not to charge the suspect with an offence. They may direct the police to charge you with a specific offence, to issue you with a conditional caution (see below), or not to charge you at all. Alternatively they may institute proceedings against you directly by way of the new “written charge” (see below).

Points to Note

•A principal reason behind this change is to create more uniformity in charging throughout the country – there are currently wide discrepancies between police forces with regard to the charging of offences. It is also intended to rectify the previous situation whereby 13% of cases brought by the police were later dropped by the CPS and 55% of cases were inadequately put together by the police
•The new procedure outlined above will result in more decisions being made by lawyers rather than police officers on whether to charge suspects with offences – virtually all arrests of activists will be dealt with by way of bail and referral to the CPS.
•For activists, the advantages are that less charges will be brought where there is obviously insufficient evidence on which to base them. But the involvement of the CPS may lead to a more political dimension to prosecutions, with activists more likely to be charged if they belong to a certain campaign, pressure group etc.
•It was originally proposed that police also be given powers to impose conditions on police bail before charge, but this idea was dropped.

The Written Charge - A new method of instituting proceedings

Under current law, it is usually the police who charge you with an offence or “lay an information” at the magistrates court in order for a summons to be issued requiring you to attend court. The Criminal Justice Act 2003 gives an alternative power to “public prosecutors” to charge you with an offence by way of a “written charge”. They must at the same time issue a document known as a “requisition” which requires you to attend court to answer the charge. A set list is provided in the bill of people who may carry out the role of “public prosecutor” and it includes the police, the Crown Prosecution Service, the Attorney General and the Serious Fraud Office.

Points to Note

•This new way of charging is designed to make the procedure speedier and less cumbersome than the old method. The police or the Crown Prosecution Service will no longer have to apply to magistrates in order for a summons to be issued. By the issue of the “requisition” they will be able to require you to attend court themselves.
•The principal way in which it affects activists will be as follows. Where you have been given police bail in relation to an offence, the CPS will automatically take over the decision as to whether or not to prosecute (see “Release on Police Bail” above). If they do decide to prosecute they may do so by way of “written charge” without your having to reappear at the police station.
•So under the new law if you are released on police bail, we envisage four possibilities;
i) The police write to you later to say that no further action is being taken. or
ii) The police write to you later to offer you a caution or a conditional caution (see below). If you refuse then you will be charged with the offence instead, or
iii) You are charged with an offence when you answer bail at the police station, or
iv) You are charged by way of the new “written charge” as outlined above, and you will not have to reappear at the police station – you will probably receive the written charge in the post.

Conditional Cautions

Up until now, the police have had the power to offer you a caution as an alternative to being charged. This is not as serious as a criminal conviction but it does form part of a criminal record. Under the new law the CPS will have the power to instruct the police to offer the suspect a “conditional caution”. This will not replace the ordinary caution but is aimed to cover situations where the CPS believe that charges are not necessary but the ordinary caution is inadequate. The conditions which may be attached to such a caution must have either or both of the following objectives:
i) ensuring or facilitating the rehabilitation of the offender
ii) ensuring that he makes reparation for the offence.

Points to Note

•The rationale behind the conditional caution seems to be as follows. As things stand the police can either charge you, caution you or let you go. The caution is perceived to be not very effective in preventing further crime, particularly in the case of young offenders. So the new conditional caution will be used when it is deemed that the ordinary caution is insufficient, but that it is not in the public interest for the case to go to court.
•The “conditional cautions” should be regarded by activists in the same way as the existing one. There are no firm guidelines either way as to whether or not to accept them, but activists need to be aware of the reason why one might be offered. A caution does amount to an admission of guilt and it may be cited in future court proceedings as part of your criminal record. Often the police will offer a caution when there is not enough evidence to go to trial, but it may also be offered where the likely penalty for the offence is so low that it does not justify the court costs. Accepting a caution is a decision activists will have to make based on their own circumstances and the circumstances of the case. Some people will never accept cautions on principle. Others will accept them even where there is a fair chance that they will get off anyway, simply in order to get the case out of the way.
•The exact nature of the conditions will be prepared later in a Code of Practice prepared by the secretary of state. They are likely to include such measures as confronting the victims of crime or community service.
•The conditional caution could be used as a way of getting community service in by the back door, without the time and expense of a court hearing.

Offence Committed on Bail

Prior to the Criminal Justice Bill 2003, there was a general right to bail in criminal proceedings unless the offence being charged was indictable or triable “either way” and the suspect was on bail at the time of the offence. In such a case it was still possible to get bail but it was more difficult, because the suspect no longer had a right to bail and had to give reasons why he should be given it. The new law extends this situation to cases where a suspect has committed an offence on bail where either offence is merely imprisonable.

Points to Note

•The white paper on criminal justice noted that nearly a quarter of defendants commit at least one offence on bail. The proposed changes are aimed at rectifying this, by making it harder to get bail if you commit an offence whilst already on bail for another offence.
•Here’s an example of how the new law could be used against activists. If you are on bail having been charged with threatening behaviour contrary to Section 4A Public Order Act 1986 (imprisonable) and at later date you are charged with aggravated trespass (also imprisonable) then you will not be entitled to a “presumption of bail” and the onus will be on you to show why you should be granted it.

Appeals by the prosecution against bail decisions by magistrates

Prior to the passing of the Criminal Justice Act 2003 ,the prosecution could appeal against a decision by a magistrate to grant bail, where the offence in question was imprisonable by 5 years or more imprisonment. This power has now been extended by the Act to cover any imprisonable offence.

Points to Note

•This means means that if you are given bail by magistrates for very minor but potentially imprisonable public order offences – eg section 4 Public Order Act 1986 – the prosecution can apply to the Crown Court to have you remanded in custody. The power will probably not be routinely used, but it will be available to the CPS if they need it and is potentially open to abuse against activists by the police / CPS for political purposes.
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