Release Under Investigation

James Daly Excerpts

Wednesday 5th February 2020 Westminster Hall

[Bambos Charalambous]

The hon. Member makes an excellent point. It is the loss of those safeguards after the Policing and Crime Act introduced RUI, in effect to replace bail, that I am highlighting in my speech. It is easy to understand why this has happened: huge reductions in police and Crown Prosecution Service resources under austerity make it extremely difficult for evidence to be collected within the timeframes imposed by bail conditions.

[James Daly (Bury North) (Con)]

I am a former criminal legal aid defence solicitor, and in preparing for the debate I spoke to a number of colleagues still involved in the area. They say that people can be in the RUI process for more than 12 months, but from the start, when a statement is taken by the police, to the end, 12 months later, the statement and evidence are the same—nothing happens between the two dates. Therefore, a charging decision could have been made right at the start rather than after a prolonged wait. I would welcome the hon. Member’s comments on that.

[Bambos Charalambous]

I agree with the hon. Member, who is entirely right about the taking of the statement, which provides the potential for charging early on. However, there is an issue with collecting digital data held on phones and other devices, which may need investigation. I will come to that.

Decreasing police resources make it increasingly difficult to complete investigations within a 28-day period as required under bail. When introducing RUI at Second Reading of the Policing and Crime Bill, the then Home Secretary, the right hon. Member for Maidenhead (Mrs May), said:

“In the case of pre-charge bail, it is apparent that a significant number of individuals have spent an inordinate amount of time on bail only to end up not being charged or, if charged, found not guilty. Of course, the police and prosecution need time to assemble and test the evidence, particularly in complex cases, before coming to a charging decision, but we need to recognise the stress caused when people are under investigation for prolonged periods, and the disruption to their lives where they are subject to onerous bail conditions.”—[Official Report, 7 March 2016; Vol. 607, c. 45.]

However, the added time flexibility in the justice system given by release under investigation is coming at a dangerous cost. The available data indicates that tens of thousands of dangerous individuals are being investigated for a crime under no conditions and with no time limit. Victims can be targeted again by a perpetrator, and some case studies demonstrate that that is happening.

The super-complaint from the Centre for Women’s Justice detailed case studies of victims of domestic violence and rape. A woman in Yorkshire reported her ex-husband for repeatedly raping her during their 13-year marriage. He was released by the police after interview with no conditions. He forced his way into her house at 2 am, held her hostage for five hours, cut her with a broken glass and tied her to a table.

The Law Society has also uncovered examples. A solicitor’s client, who had been arrested for rape and bailed, was accused of a further sexual offence against the same complainant. They were placed under RUI for the original rape accusation due to bail not being extended. Let us consider that for a moment: an alleged rapist is left entirely free to contact, intimidate and even attack their victim again. That is an utter failure of the system. Here is another example: an individual in the west midlands was arrested for murder and then placed on bail, but after the bail expired they were placed under RUI. Again, a potentially extremely dangerous individual is left entirely free to commit a crime or intimidate witnesses.

How can that be acceptable? I argue that it is not. The bail system is not perfect by a long stretch, but allowing possibly tens of thousands of dangerous criminals to be entirely free to reoffend before a trial is dangerous—especially for the victims of domestic violence. It is a sad but known fact that virtually all domestic abuse-related crimes are of a repeat nature. It is therefore essential that bail conditions are used to safeguard victims while an investigation is ongoing, yet the big reduction in the use of bail and the huge increase in RUI means that highly dangerous offenders are released while investigations are ongoing. As Women’s Aid points out, there is absolutely nothing to stop highly dangerous domestic abusers contacting their victims or going to their homes.

Again, it is clear that part of the problem relates to a severe lack of resources and cuts. Because the initial bail period is only 28 days, an extension must be approved by a superintendent. That procedure imposes a big administrative burden on police forces, who, it seems, therefore avoid using bail altogether and instead release suspects under investigation. Unless the police are given sufficient resources to investigate crimes, the use of RUI will continue to spiral.

It is clear that RUI is creating a situation where vulnerable victims may be made more vulnerable and their lives placed in danger, but, looked at from the other side, its use is also grossly unfair to those accused of committing a crime and yet to be found guilty. They are essentially left in limbo for long periods—sometimes more than a year—with no updates or no indication from the police about if or when the case will progress.

I recently spoke to a barrister in my constituency who said she has a client who stands accused of serious sexual violence along with others. The allegation was made within 24 hours of the incident in 2017. All the suspects were arrested and interviewed within a matter of weeks, and they were all released on RUI. The investigation continued, but the defendants were not charged until the beginning of 2019. The trial has been fixed for a date in 2020, almost three years after the allegation was made. There can be little doubt that both the complainant and the defendants will be affected by that significant and serious delay.

[Bambos Charalambous]

My hon. Friend makes an excellent point. I think that was the intention. At the time, there were significant cases where bail was constantly extended, so it was designed to allow the police to investigate further, but it has had an adverse effect and needs to be reformed.

In another case study, my constituent said that she has a youth client who has been subject to RUI for more than 15 separate investigations. It has not been possible to find out the details of each RUI or the status of the investigations. Accordingly, her client could end up being charged after he turns 18 in relation to allegations that date back to when he was 16. If that happens and he pleads or is found guilty, the court will not be able to impose any youth sentences such as referral orders or youth rehabilitation orders. Under the law, we have an important principle of innocent until proven guilty. It is not reasonable for suspects or victims to have to put up with such delays. Again I repeat: justice delayed becomes justice denied.

Data from police forces that have provided it shows that the average time people are subject to RUI is shockingly long, ranging from 114 to 228 days. There are cases where RUI has gone on for years. Let us pause for a minute and consider the impact of that on suspects—let us remember, they remain innocent until proven guilty. They are left unaware of what is happening with their case, whether they remain a suspect or whether the police are even investigating their case. Such uncertainty creates enormous stress, which can impact on personal and family lives as well as employment.

The Law Society has unearthed case studies that illustrate that. In one case, an elderly man was interviewed about allegations of sexual abuse in a care home in 2015-16 and released under investigation. He received no updates on the case despite five letters from his solicitor to the CPS. The man, now aged 82, was finally told at the start of June 2019 that he would not be prosecuted. Unsurprisingly, the length of the process placed extreme strain on the man and his wife, who is seriously ill.

As I said at beginning of the debate, some straightforward changes to the system could be implemented. I am glad that the Government are embarking on a review, and I was heartened to hear that they today agreed to commence their consultation on pre-charge bail. It is pleasing to see that, in the consultation document, they recognise the impact of longer investigations, the need for better resourcing and the need for regular updates to victims and the accused on RUI. I would be interested to know more about their proposed new framework following the consultation, and I hope that my speech today is considered part of that consultation.

[James Daly]

Does the hon. Gentleman feel there is any merit in going back to the system that I well remember—of giving the custody sergeant the right to charge for certain offences? The question, which the hon. Gentleman is eloquently putting across, is about the delay in investigations. In my experience, an investigation can be done in the first 24 hours in the vast majority of cases, as very little changes. X says Y has done it, and Y says, “I haven’t done it,” and that is it for the majority of cases. The idea that most cases are extremely complex and need weeks, or even months, to be reviewed is not correct. In my view, we should go back to the old system, where the custody sergeant was able to assess the evidence there and then. From my experience over many years, that did not do justice any harm whatever.

[Bambos Charalambous]

The hon. Gentleman makes an excellent point. We need to review the process that takes place before charging, but we now live in an age where more information has to be collected from phones and digitally, which takes up a fair amount of resources.

It is vital that the following issues are taken into account by the Government. First, it is essential that RUI incorporates time limits. It is understandable that the bail system needed reform. Time limits attached to bail have often been unrealistic in terms of dealing with huge amounts of digital and social media evidence, which is now often relevant to cases. It has been suggested to me by a senior police figure that a longer and staggered time period, with different levels of approval, might make bail work better. However, it is still essential that time limits of some kind are brought into the RUI system so that victims and suspects are no longer left in limbo. For these time limits to work, it is also vital that the police, the CPS and criminal lawyers are properly resourced.

Secondly, while the promised increase in police numbers by the Government is welcome, there must also be proper resourcing for the collection and sorting of evidence, especially where it is stored digitally or where forensic analysis is required. The Government must ensure that procedures and funding fit for the 21st century are in place.

Thirdly, it is imperative that certain categories of crime are excluded from the RUI system. It is entirely inappropriate for suspects accused of domestic violence, violent crime or sexual violence to be placed under RUI.

--- Later in debate ---

[James Daly (Bury North) (Con)]

I apologise if my speech sounds rather like a ramble through my years as a criminal defence solicitor. It probably will be that, but I hope that I can bring a little bit of experience on a practical level about how I have experienced the criminal justice system as a legal aid lawyer. I left just before the RUI process came into being. I had the dubious pleasure of dealing with police bail, which essentially was the same situation, but with bail conditions and people being arrested on a regular basis for breaching them. The delays were there with police bail, as they are with RUI, so that situation has not changed massively, as far as I can see.

My research for this debate was to speak to colleagues who are still practising in large practices. A friend I spoke to over the past couple of days told me that 75% of the people his firm represents who are interviewed in police stations are released on the RUI procedure. How can that possibly be? The vast majority of those case are straightforward offences. That was the point I was trying to make in my earlier intervention.

Another colleague of mine said that the situation has got to the point where, if my friend came to me and punched me on the nose—although that would clearly never happen—and I made a complaint to the police and said, “I have seen my friend, Fred Bloggs, punch me in the nose, and there is no doubt about it as I have known him for 10 years,” he would be released on this procedure. He would not be charged. He would go through this process for the best part of a year, and in the end he would almost certainly be released without charge, either because people had forgotten what they had said or the circumstances of the case, or because something else had happened.

It is a very unsatisfactory process. I would like the Government to consider going back to the custody sergeant ways. I know it is probably very old-fashioned, but I saw justice being done when I was a young lawyer. What is important here is how quickly we, as Members of Parliament, should expect the police to carry out their investigation. If the vast majority of cases are straightforward and involve two or three statements, how can that take more than 24 or 48 hours? Obviously people might be on holiday or away, but the vast majority of times, in my experience, the process literally involves a police officer going out and taking the statements, and that is it.

It has been confirmed to me by colleagues over the past couple of days that if that process happens—in most cases over a 24 or 48-hour period—and somebody is then released under investigation, when they come back to the police station in a year’s time it will almost certainly be the same evidence. Nothing will have happened, so the decision made 12 months down the line could have been made within 24 hours.

[Sir Robert Neill]

My hon. Friend makes an important point, and I know that he has real coalface experience of this. What might change a year down the track is that memories have faded, so the evidence will be less potent, which may result in a miscarriage of justice either way. We have talked about delays between charge and hearing dates in Crown and magistrates courts. If a delay is added before charge because of this system, the delay will be doubled up, which leads to that risk.

[James Daly]

For cases involving fraud or some technical matters, a process such as this should quite clearly be brought into play, because the technical examination of computers or whatever takes weeks or months. My comments are not in respect of those cases.

To follow on from a point that my colleague made, I have been told in the last 24 hours of rape and manslaughter cases following this process, which is quite incredible. It is suggested that one of those cases has direct evidence of involvement, but this process is happening. A suspect in a most horrendous rape case, similar to the one outlined, was released under this process for more than 12 months. I do not know how that can be.

We should look at the process within the police station. When a suspect goes into a police station, they will almost certainly be interviewed by an officer who does not take responsibility for the case later in proceedings. The officer who interviews does not have ownership of the case and gives it to the investigating officer, who is perhaps somewhere else in the police station or is not on shift at that moment in time, and the case gets lost within the system. My colleagues report back to me that, when this process happens, it is months down the line before the first conversation with the victim, or even the person who has been complained about. This system encourages delay and delayed justice, and that simply cannot be right.

When I first practised in court, I used to represent shoplifters or people who had committed the most straightforward offences. The court would be full of people committing that type of offence, but they are no longer within the court system; they have been taken out. We have a limited number of cases for which we have created a system in which we do not investigate these matters within an appropriate period of time. I believe that, sadly—I know that this was not the intention behind the process—this encourages tardiness and officers not prioritising these matters.

The only way of addressing this is to bring back a system in which charging has to be made within a set period of time, one way or the other, unless there is a good, proportionate and reasonable reason, or else we will continue to have these problems. We cannot have a system in which people accused of rape or manslaughter are in the community for more than 12 months, able to speak to their victim, to leave the country and to do other things. That is not the intention of the Government, the police or anybody involved in the process, but that is where we are.

I am interested to hear the Government’s view and to contribute to the review, but I say to the Minister that this comes down to who has the case initially and to carrying out the investigation at the earliest opportunity. It may be that we do not need a CPS lawyer to review all the evidence. There may be an experienced police officer who can do that, such as the custody sergeant, or there may be another way of dealing with matters that protects potential victims and the interests of those who have been involved in this process for a long time and that means that justice can be done.

At the start of my career, I believed that justice was done, but the custody sergeant did not always get it right, and there were lots of cases in which no further action happened as a result, so there is a strong argument against what I am saying. However, I can tell hon. Members, on behalf of my legal aid colleagues—I am proud to stand here as one of them, trying to represent some of the things that they believe in very passionately—that justice was done, the public were protected and the public interest was protected. I will obviously do anything I can to assist the Minister in the review.

--- Later in debate ---

[James Daly]

What does the hon. Lady think about pre-charge advice? It is one of the reasons—it may be a good reason—for delays in the system. Does she feel that pre-charge advice plays a positive or negative role in this process?

[Louise Haigh]

It contributes to the delays in the system. Clearly it has had a role, alongside these reforms and issues around capacity and resources across the whole system.

It is shocking that 93,000 suspects of violence and sexual assault were released under investigation since 2017. The Secret Barrister tweeted this week:

“The primary driver behind the drop in prosecutions for sexual offences…is that lack of police resources means suspects are being released under investigation (RUI’d) for *years*.”

The Government’s reforms did nothing to address the reason people were languishing on police bail; they simply gave the old problem a new label, while investigations became more complex and time consuming due to digital explosion. We are now seeing cases in the Crown court for offences dating as far back as 2017. While suspects are left under the cloud of suspicion for years, victims of serious offences are denied closure and live in fear of being confronted by their accused.

I do not think the answers to this problem are complicated—some have been clearly expressed by hon. Members today—nor does it require an endless Home Office review. There is a place for release under investigation, but it must be used proportionately. The open-ended overuse of RUI has made a mockery of justice. Clearly, time limits must be introduced to prevent the perverse situation where victims and suspects are waiting too long.

The Government’s proposed mechanism to do this via codes of practice with no judicial oversight requires careful thought. The risk is that unless the codes of practice are strictly applied by officers, timescales will slip again. The police must be encouraged to use police bail where necessary to protect victims, particularly in cases of violent of sexual offences.

We look forward to engaging fully with the consultation in the coming weeks and months, but the elephant in the room is the crisis in the criminal justice system, and this consultation alone will not fix that. The problem is rooted in the utter mess the governing party has made of criminal justice, from the explosion in violent crime due to the reduction in police numbers, to the crisis in the probation system and our prisons, meaning that offenders are leaving prison even more likely to reoffend. All of that has meant detectives and investigators are dealing with an impossible caseload while facing a crisis in numbers.

The Minister knows that the recruitment pledge will only help marginally, because there is no commitment to replace the 16,000 police staff and investigators who have been lost. The party of law and order has veered so wildly on criminal justice that it is hard to believe that Ministers can maintain a straight face when they claim to be tough on crime. The cut of 20,000 police officers is now being reversed. Probation was privatised, but now it is nationalised. Bail reforms were introduced, but now they are reversed. On the central task of any Government—to keep the public safe—this Government have been shambolic. The silent crisis in bail reforms requires swift action, which we will support, as we will always support any proposals that help to correct some of the enormous damage that has been committed over the past 10 years.