In April, district Judge Feinstein, at Salford Magistrates’ Court, made a ruling that set a substantial cat amongst a large flock of pigeons.
The case concerned a murder suspect, Paul Hookway, who was arrested last November. Police had been given permission to detain him for 36 hours. Five months later, police applied to the courts to extend the period of detention from 36 hours to the maximum of 96 hours. But the district judge refused, saying that the 96 hours had expired months ago. Greater Manchester Police sought a judicial review, but on 19 May the ruling was upheld at the High Court. By the time the full implication of this judgement was appreciated, the flock of pigeons had turned into headless chickens.
The ruling overturned 25 years of police practice under the 1984 Police and Criminal Evidence Act, which allows suspects to be held only for 96 hours before they are charged or released. It has been customary for officers to release suspects on police bail while they complete their investigations, which can take weeks or months. But this ruling said that periods spent on bail should also count towards the 96-hour ‘detention clock’ limit, and threw into doubt the legal position of 85,000 police suspects currently out on bail.
The Supreme Court, due to hear a full appeal on the issue on 25 July, dismissed an application to suspend the original ruling pending that hearing. So the Home Office decided to take immediate action. Last Thursday the Home Secretary introduced the Police (Detention and Bail) Bill. Five hours were allowed for the passage of the bill through all its stages in the Commons. In the event three hours sufficed, with all party support. It completed its passage through the Lords and received Royal Assent on Tuesday. Section 1 of the Act states:
1 Amendment of Police and Criminal Evidence Act 1984
(1) In section 47 of the Police and Criminal Evidence Act 1984 (bail after arrest), in subsection (6), at the end insert “and any time during which he was on bail shall not be so included”.
(2) In section 34 of that Act (limitations on police detention), in subsection (7), at the end insert—
“But this subsection is subject to section 47(6) (which provides for the calculation of certain periods, where a person has been granted bail
under this Part, by reference to time when the person is in police detention only).”
(3) The amendments made by subsections (1) and (2) are deemed always to have had effect.
But it was not without contention. Many MPs queried the delay in reacting to the initial judgement, though Home Office ministers insisted that the full implications of the original ruling did not become clear until 30 June. The rush to legislation also sat uneasily. Too often in the past it has been a case of legislate in haste and repent at leisure, the virtually unusable Dangerous Dogs Act 1991 being the classic example. Theresa May said that only fast-track legislation could give the police the “certainty and immediacy in restoring the law as it was understood to operate.”
Then there was the retrospective nature of the legislation. The Home Secretary rebutted criticism, saying: “This is not retrospective legislation in that it merely corrects the decision that has recently been made and puts the situation back to what it had been understood to be. That is supported by Liberty, which has said: ‘We do not believe that the proposals are retrospective in their nature as they do not seek retrospectively to create a criminal offence, sanction or other burden. They would, in our view, not fall foul of Article 7 of the European Convention on Human Rights or the common law rule against retrospective penalties.’”
Defence lawyers have warned that the legislation boosts police powers. Hookway’s solicitor said that the legislation being rushed through will widen police powers, not prevent chaos. “The judgment in Hookway should have been a wake-up call in respect of this new emerging police practice of ‘bail and see’ rather than interview and investigate properly at the front end” he said. In the Commons debate, Frank Dobson said: “I have had cases drawn to my attention in the past few years of people on greatly protracted periods of bail. I do not believe that that is acceptable.” Ian Kelcey, of the Law Society, said the courts may be sending out a message to the police. He told BBC News: “Defence solicitors have been extremely concerned over the period of the past few years that bail has extended and extended, and I think this may be a message that’s coming out from the courts that enough is enough and you can’t just treat it as an ever-extending piece of elastic.”