The recent announcement of a government review by Home Secretary Priti Patel of the pre-charge bail legislation is a long over-due response to a crisis within our criminal justice system which has left thousands of suspects in criminal investigations in a state of limbo and created a huge backlog of unresolved cases.

In 2016 new legislation was introduced which limited the powers of the police to grant pre-charge bail. After a suspect is arrested the police frequently need more time to investigate before a decision on whether charges should follow can be made. Suspects are released on police bail whilst these enquiries take place. Criticism of the old system, where suspects were often released on police bail for long periods of time during which they had to comply with onerous conditions led to a review of the law.

The 2016 legislation limited the power of the police to grant bail to a suspect before any decision to charge is decided on. They could only bail a suspect for a maximum of three months after a first arrest. Bail would be periodically reviewed thereafter. Suspects were also given the right to ask a Magistrate to review the grant of bail in certain circumstances – see our BSQ briefing here.

At the time the new legislation was announced it was welcomed on all sides. It was seen as an initiative that would encourage the police to act with greater transparency and speed up the criminal investigation process.

What has transpired since is a perverse example of the law of unintended consequences. Dwindling numbers of police officers have meant that fewer crimes are being investigated. As they struggle to cope with increasing workloads, chronic understaffing and underinvestment police forces across the country have decided as a matter of routine to opt out of the new pre-charge bail regime entirely whenever they can by releasing suspects under investigation – or “RUI” – without conditions and with no time fixed for their return.

Research by the Law Society research reveals that tens of thousands of suspects in criminal investigations are now released under investigation. In even the most straightforward allegations of low-level violence, theft or criminal damage it is now common for the police to release suspects under investigation for many months while they conduct enquiries. In the most complex cases - and Law Society research confirms that suspects in rape, murder and serious fraud cases are amongst released under investigation – enquiries can take years from start to finish.

The most common explanation given for this is the time taken to examine digital material from phone and computer downloads. This type of evidence now features in almost every serious criminal prosecution. Because police high tech crime units are inundated with the number of these referrals a forensic examination can take 6 months to 2 years.

Delays are also commonplace once the police have finished an investigation. At this stage a dossier is compiled and sent to the CPS. In recent years the CPS has lost a third of it’s staff and 25% of it’s budget. It can take many months for the CPS to find a lawyer available to make a charging decision in a complex case. With the CPS taking a more risk averse approach in rape cases charging decisions in sexual allegations can take just as long.

For victims, suspects and witnesses the wait is not over once a case reaches court. Many Crown Court rooms are sitting empty as the number of sitting days for Recorders - part time judges in the Crown Court - have been slashed due to Ministry of Justice cuts. Lawyers complain of courtrooms that are closed because court managers seek to save money on electricity bills. Legal bloggers track the number of crown courts lying idle on twitter feeds. And with custody cases prioritised there is a huge backlog of defendants on bail pending trial in the Crown Court, many waiting more than six months for their trials to be listed.

No wonder then that the level of prosecutions are at a record low. In 2018 there were almost 67,000 fewer trials held than in 2008. This year the number of people taken to court for indictable crimes dropped by 8% compared to 2018.

In this new age of resource intensive data driven criminal investigations the cumulative effect of years of underfunding across all the agencies of our criminal justice system is causing a perfect storm. It is only the goodwill of it’s participants – the lawyers, police and probation officers, judges and court staff – that is keeping it afloat.

Read more about our pre-charge lawyers and our police station solicitors services.

If you require advice and assistance whilst you are under investigation please contact our London offices for a confidential consultation.