For who would bear the whips and scorns of time,
Th’oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office, and the spurns
That patient merit of th’ unworthy takes …
Hamlet, Act 3; Scene 1
This rant is aimed at those police officers who think it is acceptable to keep someone in custody, on bail, or in a state of concern and worry, while they go about their investigations at a leisurely pace and with no sense of urgency.
The PACE Code of Practice now permit the police to hold a suspect in custody or under investigation for (almost) as long as it takes for reports to be written, submitted to the CPS and then charging decisions made. Of course, there are three scenarios.
First, the suspect in custody who may have to wait hours, deprived of liberty, for the processes to be completed. If the CPS asks for more information or evidence, the police can bail a suspect or hold them while the investigation continues. Trying to make representations against a decision to hold a suspect pending a CPS decision is extremely difficult, if not almost impossible. The police response to defence lawyers’ representations about custody time limit extensions is almost always: “It’s down to the CPS and you (and your client) must wait for them.”
Second, the police can bail out a suspect to a new date for CPS advice or a charging decision. The suspect would be either on conditional or unconditional bail. If on conditional bail, this can seriously interfere with family and other commitments.
Third, the police can interview a suspect as a volunteer, not under arrest but under caution, and then release the suspect pending charging or other decisions. This can take a phenomenal amount of time and causes worry to suspects who feel that they cannot get on with their normal life while their future hangs in the balance. We have seen this with the Cliff Richard arrest, the long delays involving other public figures, and in cases of historic sexual abuse cases. While the police have the right and duty to investigate, they really must do so expeditiously and not place, as I fear sometimes occurs, cases at the back of the queue because there is no judicial or legal pressure to expedite matters.
While suspects are on bail, there are no constraints to stop police from re-bailing suspects for months if not years. It is not possible, as the law now stands, to force a decision from the police or CPS. Hopefully this will change so that suspects, those accused of offences, can have the closure which witnesses and complainants/victims seek and are given from the criminal justice system. I would suggest a maximum of three months, after which the police must apply to a court for an order to extend the bail – giving good reasons in writing, which can be challenged by a defence advocate. This idea has been considered by Theresa May when she was home secretary, and I would hope that our politicians can see the justice of this suggestion.
The CPS is, of course, is under pressure and massively under-resourced; delays before charging decisions are becoming more frequent, especially outside the normal office hours. Yet the police had sufficient evidence to arrest and interview, so that the charging or other decision should not necessarily be that difficult. After all, charges can always be amended after a reviewing lawyer has examined the case properly, rather than late at night or in the early hours of the morning.
- A client, arrested for serious sexual offences, who had to wait six hours in custody while various CPS lawyers claimed to be at the end of their work shift and passed the case on to a colleague. It was only after I threatened to refer a lawyer to their professional body that a decision was made to charge the client.
- A client who has been interviewed many months ago as a volunteer and who is still waiting for decisions about his future. Despite my calls to the investigating officer, no decision has been made for more than six months and the client is now seeking psychiatric assistance due to anxiety.
- Two clients arrested for murder who remained on bail for nearly two years, until other proceedings had finished.
- Numerous clients who are uncharged, awaiting CPS charging advice where inspectors and superintendents will give full extensions for the decisions, even when a shortened time would result in the mind of the charging lawyer being more focussed. After all, I feel sure that any lawyer or police officer in custody would expect expedition so that release and so on would be finalised.
Yes, even with electronic communications, suspects still have to bear the law’s delay.