Known unknowns? The crazy world of pre-charge bail policy

It's too easy to make policy based on assumptions. We all have beliefs we don't question. But good policy-making relies on challenging assumptions. Unfortunately this doesn't seem to have happened in the case of pre-charge bail.

Those in police custody whom the police want charged but don't have enough evidence to do so are either released on pre-charge bail or released under investigation. This policy underwent radical change in April 2017. The new policy was implemented very quickly to address a great wrong - that people were being left in limbo for months, if not years, subject to pre-charge bail restrictions, waiting for the police and the CPS to make a decision. The new policy limited the use of pre-charge bail and brought in "release under investigation" (RUI) whereby suspects were released without conditions while police continued investigations. Unfortunately the policy change did not address the underlying problem - that people whom the police wanted to charge, and their alleged victims, were waiting way too long for their cases to be resolved. So over long pre-charge bail periods were replaced by over long RUI periods.

Then concerns about RUI grew and people starting lobbying to change policy again. And groups representing victims were among them - both because victims should not be held in limbo, and because victims' groups believed that pre-charge bail gave victims greater protection from re-victimisation.

But it is this assumption, which is partly driving policy change, which needs challenge. A new report from the police inspectorate perpetuates the belief. "Since the publication of National Police Chiefs’ Council guidance in 2019, the police have made renewed efforts to redress the balance between protecting victims and the rights of suspects. This has resulted in some notable improvements. But we think there is much more that should and must be done to keep victims who are most at risk safe".

Throughout the report police are criticised for not using pre-charge bail more to protect alleged victims. We need to protect alleged victims as much as we can, but there is no hard evidence in this report or from any other research/data that pre-charge bail actually stops anyone offending. In a qualitative research report, there are quotes from lawyers who say that they think their clients are less likely to offend if on pre-charge bail, and lots of quotes from victims who say that they would have felt safer if their alleged attacker had been subject to pre-charge bail, but no actual evidence that pre-charge bail protects.

I'm willing to believe that some pre-charge bail conditions may influence offending. If suspects are barred from contacting witnesses or from going near the alleged victims' home, I can see that the victim would feel safer. But there is still no evidence that they are safer. And most bail conditions are much "lighter"- such as having to forfeit a passport or to report to the police station regularly. My hunch is that bail conditions don't prevent reoffending much or at all, and that that hunch is shared by most custody and investigating officers. If they were really convinced that pre-charge bail conditions prevented reoffending, surely these officers would more often go through the bureaucratic effort of imposing them and they would let fewer lapse?

Why am I practically alone in suggesting that pre-charge bail conditions may not be worth the paper they are written on? Because most people are convinced that deterrence works in preventing crime, and because everyone wants to think there is a relatively easy, relatively painless way of reassuring stressed victims that they are unlikely to suffer again in the short term. Unfortunately there is no evidence that deterrence works and plenty of evidence that someone determined to reoffend will not be put off by some conditions on a piece of paper. So I think we may be leading victims down the garden path. If there's no evidence that pre-charge bail conditions reduce offending and prevent victimisation we should be honest and find out what does work (remembering that there are limits on restricting the liberty of someone who has not been charged with a crime).

I don't really understand why the Home Office has not done its own research/data analysis on this issue. It left the HMICFRS to do some qualitative research, which is interesting but inconclusive. So inconclusive that I think HMICFRS was unwise to use it to underpin their findings - the report says "Research from BritainThinks found that victims of these crimes feel that the crime hasn’t been taken seriously when suspects are RUI", but this is based on the testimony of only 27 victims, of whom many according to the research don't know the difference between bail and RUI.

Most of the recommendations of the HMICFRS report are spot on, but its risky to base the idea that pre-charge bail protects on 27 victim interviews in the absence of any other data.

The main way we can protect and reassure victims is to have shorter investigations and to communicate regularly about what is going on. Pre-charge bail conditions seem to have become a proxy for effective victim support, a symbol of how victims are let down. They certainly are let down, but it's the system which is failing, rather than pre-charge bail conditions.

I fear whistling in the wind. People think pre-charge bail conditions improve victim safety so the law will change yet again. I only hope, this time, that the government does monitor what difference pre-charge bail actually makes.