Police (Detention and Bail) Bill

Robert Buckland Excerpts

Thursday 7th July 2011 Commons Chamber

[Bob Stewart]

rose—

[Mr Robert Buckland (South Swindon) (Con)]

rose—

[Steve McCabe]

They are queuing up for me, but I will go first to the hon. Member for Northampton North (Michael Ellis).

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[Steve McCabe]

All judgments depend on what the judge thinks Parliament intended; that is the point. We have someone who was able to draw a different conclusion, however, and as we have reached this position I am happy to deal with the legislation today, but it would be useful if the Government gave us a further opportunity to debate the implications of the situation.

[Mr Buckland]

I was going to try to help the hon. Gentleman by saying that the matter had never been ruled upon—it had never been a matter of controversy. Practitioners and everybody involved in the system had assumed that the clock would stop on release from custody, but, for the first time in 25 years, that particular decision was taken and it confounded everybody who has experience of the criminal justice system.

[Steve McCabe]

That is largely the same point as the hon. Member for Northampton North made. Does the hon. Member for Beckenham (Bob Stewart) still wish to intervene?

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[Tom Brake (Carshalton and Wallington) (LD)]

Let me start, Mr Deputy Speaker, by apologising to you and to other Members for my brief absence from the Chamber. I had to attend the Programming Sub-Committee on the Legal Aid, Sentencing and Punishment of Offenders Bill. I must say that the process that took place therein would not have been out of place in a “Carry On” film.

As Members will know, we are having this debate because the High Court has ruled that suspects cannot be bailed for longer than four consecutive days, or 96 hours. That decision comes after a ruling from Salford magistrates court that the police could not detain suspect Paul Hookway again because his “detention clock” had been running while he was on bail—a ruling that has immediate effect. It is clear that the damage that this would have done to police investigations had we not taken the action that we are taking would have been very substantial in stopping the police being able to keep track of a suspect while they continued their investigations, collected new evidence, and so on. Given that that would have affected more than 85,000 people across England and Wales, it was clearly necessary for us to debate emergency legislation and implement it as soon as possible.

However, I would like to take this opportunity to raise some concerns. Liberty’s briefing, which I support, includes the perhaps understated comment that it is

“somewhat surprising that this appears to be the first time that the issue has arisen in the 25 years that the PACE Act has been in force.”

Indeed, other Members have made that point. It is concerned about having a requirement to stick to a consecutive 96-hour period, stating:

“Unduly limiting the period for which a suspect may be bailed by police could have the effect of encouraging premature or inappropriate charging with all the injustices that would flow. It could also have the effect of encouraging police to detain for the maximum (96 hour) period in circumstances where a suspect could be released earlier thereby supporting prolonged detention rather than release on bail.”

Those are genuine concerns which have been supported in other representations that I have received. Although the action we are taking is necessary, there is no possibility today of our debating and perhaps amending these clauses to reflect some of the concerns about the use of police bail. Liberty goes on to say:

“While 96 hours may well be too short a limit to allow effective further investigation in more complicated cases, it should not be the case that police bail can go on forever.”

It also notes that

“police bail can have attached to it a number of highly onerous conditions.”

I should like to refer to a couple of anonymised cases that highlight some of the issues of police bail and, in some cases, its very extended use. A barrister contacted me to say that he was aware of a serious fraud case where certain suspects were on bail for a period of two years and 10 months, and released from it only recently when a trial of some of the other suspects in the same investigation ended with acquittals or a hung jury. He referred to another case in which he was instructed where the period was 18 months—from December 2007 to the point of charge in June 2009. He accepts that investigations will sometimes take a long time to progress, particularly in cases involving high-value frauds, as in the two that he cited, which I have now put on the record. He goes on to highlight the pernicious impact of police bail, particularly regarding the obtaining of restraint orders for the assets of the accused. He says that although there will be occasions where such restraint orders are justified, perhaps to ensure that criminal assets are not dissipated, their impact is substantial and can sometimes affect the ability of the accused to pay their mortgage, for instance—and of course such people often remain unconvicted.

It is legitimate, in the limited time available to us, to raise those points and to flag up the fact that while emergency legislation is necessary, we need to be careful about the implications of police bail and its uses and to ensure that it is not abused. Liberty says in its briefing that we might at some point—it suggests in the Protection of Freedoms Bill—want to consider a statutory time limit on the use of police bail. It suggests that the statutory limit for pre-charge bail should be set at six months. I am not sure whether I support that contention—I suspect that in fraud cases, in particular, it would be rather hard to deliver and perhaps insufficient—but it might be appropriate for us to debate the subject at a later date.

[Mr Buckland]

A potential solution to that issue would be the imposition of a time limit in most cases, unless there was a particular element, for example fraud, which would bring the applicants back to court to apply for an extension. That could be a way around the problem that my hon. Friend is so eloquently adumbrating.

[Tom Brake]

I thank the hon. Gentleman for his helpful intervention. He is knowledgeable in these matters, and I am sure that what he suggests would be an appropriate solution.

The Law Society has also made representations to Members. As well as supporting a length of time for which pre-charge police bail applies, it is keen that the police should admit people to pre-charge bail only when it is necessary. If people voluntarily accept that they must attend, it may not be necessary to put pre-charge bail conditions in place.

It is clear that there is an urgent need to implement this emergency legislation. I am pleased that the Government are taking urgent action on this matter, and I wish the Bill a speedy passage through the House today.

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[Mr Robert Buckland (South Swindon) (Con)]

The liberty of the individual should be a matter for this place first and foremost, so the fact that this is emergency legislation should not be a cause of embarrassment or shame—it should be welcomed. Judges have an important role in interpreting the law. Their role is primarily to interpret rather than to enact. That is why I am entirely content that it is this place that will make the important decision about the ambit of police bail. It is not a matter for shame, but nor is it quite a matter for celebration, bearing in mind the fact this House is a busy place and we have a lot of work to do.

It should perhaps be a matter for quiet reflection that it is the primacy of the legislature that matters when it comes to fundamental issues of liberty—that is what we are dealing with today—and the constant balance that we have to maintain between liberty and the public interest in being protected from crime and its consequences, however minor or serious. I was glad to be reminded by the right hon. Member for Holborn and St Pancras (Frank Dobson) about the sad anniversary that we have reached today.

My hon. Friend the Member for Dartford (Gareth Johnson), in his excellent contribution drawn from years of experience as a criminal practitioner, made some important practical points about the problems that would quickly come about if the House did not take swift action. The examples that he gave—including the identification procedure problem—were well made and do not need repeating by me. However, on a more fundamental level, one aspect that perhaps we have not emphasised today is the interests of the victims and witnesses of crime. In many cases, they give the police statements and then have to wait an inordinate length of time before they know the outcome of the case or are called to court to give evidence. That is one of the main problems encountered day in, day out by courts across the land when dealing with some of the delays caused by readmission to police bail by suspects, sometimes for an inordinate length of time.

The debate comes at an opportune moment because it gives us a chance to look at the whole ambit or spectrum of police bail, not only from the point of view of the suspect or the defence lawyer, but from the point of view of the victim of crime, the complainant or witness, waiting anxiously. In many cases, I have seen the frustration of judges when they hear that decisions about charge have been put off time and again, causing witnesses to lose heart or to lose interest. Sometimes cases fail at that final stage in court, and that is unforgiveable from a variety of perspectives, but most of all from the public interest perspective. That is why the points made today about limits on police bail were well made and deserve serious consideration as we proceed.

The challenge facing the court in Salford was one that the learned judge himself described in paragraphs 18 and 19 of his judgment as being of “limited application”. That was the view of the learned High Court judge, and it was a view that, on examination by Professor Zander, was challenged. A debate then began. Professor Zander is an eminent academic and has enjoyed a peon of praise today from hon. Members on both sides of the House—I am sure that he is enjoying every minute of it. It is thoroughly deserved, but I think that he would agree that to elevate his article to advice status would overplay it. In my view, he opened a welcome debate on the effects of the judgment. It is a debate that Mr Justice McCombe put himself on the other side of by dint of his remarks in paragraph 18 and 19. With respect to the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), it is a little trite to suggest that the consequences of the decision were set in stone some weeks ago. The position only became clear when that debate was initiated, and I think that the Government are to be congratulated on taking effective action.

The Police and Criminal Evidence Act 1984 was seminal legislation. It was not drafted on the hoof, but put together after many months of careful work and input from all sections of those interested in the criminal justice system. It was a game-changer in so many important ways. It was progressive legislation that, at a stroke, made clear and transparent certain procedures that had often seemed in the police station obscure and frankly worrying not only to suspects but to police officers themselves. It was a Conservative Government—the noble Lord Brittan was Home Secretary and his Minister of State was the noble Lord Hurd—who steered that excellent legislation through the House. It has stood the test of time admirably.

As with all legislation scrutinised by the House, however, the 1984 Act might be found to be only human. I am reminded of the remarks of my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood). She was right to say that the Act was silent on the effect of section 44. We all have to concede that. After Royal Assent, however, practitioners and everybody concerned with the process came to the assumption—the right assumption, I think—that the clock would stop and start as long as the suspect was in police detention, and that the concept of time was not absolute but relative to the time spent in detention. That was well understood by everybody in the system. For 25 years that assumption will have been made by practitioners from the humblest junior solicitor to the highest of High Court judges. They need make no apology for having done so.

[Nicola Blackwood]

To be clear, is it not the case that that assumption arose not out of thin air or a desire for convenience, but out of the fact that that was the intention made clear in parliamentary debates at the time?

[Mr Buckland]

That is indeed the case, as was helpfully set out in Professor Zander’s article, where he took the trouble to remind himself of the case of Pepper v. Hart, which allows judges to look at Hansard if there is any ambiguity about the intention of the legislature. Unlike the judge in the decision in question, he examined Hansard and found buried in the debates in what were then called Standing Committees—the predecessor title, as it were, of Public Bill Committees—a clear understanding on the part of all parties. It was the former Member for Birmingham, Ladywood, Miss Short, who tabled an amendment designed to ensure that the suspect would be detained for no more than 96 hours, and the then Minister of State, now the noble Lord Hurd, who responded. It was quite clear from that debate that there was an understanding that time would stop and start according to when the suspect was in detention.

With respect to the learned High Court judge, that debate would have assisted him in his deliberations and given him great comfort and support in coming to what we would all have regarded as a purposive decision—that is, a decision that would have given purpose to the intention of the legislators and reinforced a quarter of a century of practice. Sadly, we know that that was not the case, although we should hesitate before rushing to criticism of our judges. They have a tough job to do. They have to make decisions day in, day out. They are presented with a range of different scenarios and cases. I do not think that anyone should rush to criticise the judiciary in that respect because of one difficult case. However, I return to the point that I made at the beginning of my speech. I am glad that it is this place—this House—that is reinforcing and reiterating the law as we have all understood it to be, and which will now, in my submission, be put beyond any doubt whatever.

I know that voices outside this place have urged caution on us in rushing this legislation through, although a lot of their concerns have been addressed in the remarks made by other Members today, which I will not repeat. I have made some suggestions about the potential limitations on police bail—for example, in cases that do not involve a large amount of documentation or serious fraud—but I want to return to straightforward examples of cases involving violence or assault, where far too often, over-cautious lawyers have waited before charge for all the evidence to be gathered, including medical evidence. Frankly, my suggestion to them is to remember how we used to do it. We would charge and then gather the evidence as quickly as possible, to ensure that we did not lose the interest, enthusiasm and participation of prosecution witnesses along the way.

The coalition Government quite rightly restored the decision-making power for certain offences to the police. That was a wise decision, which I believe will allow minds to be focused in the police station when dealing with a range of less serious offences. That will leave more serious offences to be dealt with by the Crown Prosecution Service as part of the advice-before-charge procedure. At that stage, everybody needs to remember what we have said today in this House and elsewhere about the need for expedition and the need for good judgment to be exercised, even though all the evidence might not have been gathered.

I will draw my remarks to a close. I support giving the Bill its Second Reading, and I think that we as a House should be glad that such decisions are falling to us.