Police bail without charge: The human rights implications

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Edwards, R. A. ; Cape, Ed (2010)

Whilst the power of the police to release a person on bail prior to trial has existed for centuries, the power to release on bail a person suspected of but not charged with a criminal offence has been available to the police only since 1925. The power to attach conditions to pre-charge bail is of very recent origin, having been introduced for the first time in 2003 but rapidly expanded since then. Whilst imposing restrictions on the liberty of a person should, constitutionally, be reserved to the judiciary, the fact that it was originally conceived, in part at least, as a mechanism for enhancing liberty reduced the constitutional tension created by allowing members of the executive such powers. However, the changing role of arrest in the investigation of crime and the granting of extensive powers to the police to impose bail conditions means that the police now have the ability to place controls on people not charged with a criminal offence for extended periods of time. It is argued here that this is in breach of the right to liberty under Article 5 of the European Convention on Human Rights and, in practice, may also breach other Convention rights.
  • References (41)
    41 references, page 1 of 5

    95 de Haas (note 94 above) 393-394.

    96 The early English case law is meticulously catalogued in de Haas, and is drawn upon here.

    97 Year Book, 4 Hen. VI at 8 pl. 21.

    98 Anon (1704) 6 Mod. Rep. 231. This is a view long approved by the Supreme Court of the USA: “When bail is given the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment” (Taylor v. Taintor 83 U.S. 366, 371-372 (1872)). Following the decision of the USA Supreme Court in Leary v. United States 224 U.S. 567, 575-576 (1912) a contract system of bail replaced the common law one. This is an approach contrary to public policy in English law: “When a man is ordered to find bail, and a surety becomes responsible for him, the surety is bound at his peril to see that his principal obeys “the order, of the Court: at least, this is the, rule in the criminal law; but if money to the amount for which the surety is bound is deposited, with him as an indemnity against, any loss which he may sustain, by reason of his principal's conduct, the surety has no interest in taking care that the condition of the recognisance is performed. Therefore the contract between the plaintiff and the defendant is tainted with illegality” (Herman v. Jeuchner (1884-85) L.R. 15 Q.B.D. 561, 563 (Brett MR)).

    99 Foxall v. Barnett (1853) 23 L.J.Q.B. 7, 8 (Coleridge J ).

    100 A. Bottomley, “The Granting of Bail: Principles and Practice” (1968) 31 M.L.R. 40, 49. Parliament acted because the poor were needlessly detained as a result of being unable to find sureties with sufficient resources, and the view was formed that the poor need not provide sureties as they were less likely to abscond.

    101 Schedule 2 of the Bail Act 1976 dispensed with the term “at large on bail” so far as statute is concerned. but see R v. Rebecca Saw [2009] EWCA Crim 1, [2009] 2 Cr. App. R (S) 54, 43 (Judge LCJ).

    102 For the former Labour government's proposals to extend powers of arrest to anticipated breach of conditions or failure to surrender to custody, and to make them criminal offences, see note 78 above.

    103 This may be contrasted with police bail post-charge where, under PACE 1984, s. 47(3A), the date of the first court appearance must normally be no later than the first sitting of the relevant magistrates' court after the person is charged. It may also be contrasted with bail from a court where, whilst there are no time limits in relation to bail itself, there are in practice a number of factors limiting the period for which a defendant will be on bail.

    104 House of Commons Standing Committee D, 21 March 2006, Hansard cols. 136-138. The policy guidance issued by the Kent Police states that normally street bail should have a return date of no

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