FreeB.E.A.G.L.E.S.: Legal Advice for Activists (v4)

The Criminal Justice Act 2003 has introduced major changes to the system of granting bail due to perceived inadequacies in the charging procedure. Police now have new powers to grant ‘street bail’, without having to process the prisoner in the police station.

In many cases, the Crown Prosecution Service (CPS) rather than the police will in future take over decisions on whether to charge offenders. They will then have the power to charge suspects directly by way of the new ‘written charge’. Alternatively they may direct the police to offer the suspect a caution or the new “conditional caution”.

In future it will be harder for defendants to get bail if they are already on bail for another imprisonable offence, and prosecution powers to appeal against such bail decisions have been increased.

4.2 “Street Bail”– powers of police to grant bail elsewhere than at a police station

Up until the passing of the Criminal Justice Act 2003, the police had to take you to a police station as soon as reasonably practicable after arrest. The police did have the power to release you before getting to the police station, but in doing so they could not bail you to attend at a later date. Under the new law, the police now have new powers to release prisoners on bail before reaching the police station, under a duty to appear at a specified police station at a later date.

This new power will significantly affect animal rights, anti-globalisation and other protest groups. In mass demo situations the police are often unwilling to make large numbers of arrests, as this means that police officers will be taken away from the scene for several hours to deal with them.

Also as the venues for protests are frequently changed at the last minute, there is often no cell space available in the local police stations for large numbers of prisoners, creating more logistical problems. The new legislation will help the police to deal with these kinds of situations.

The police will now be more willing to arrest larger numbers of protestors, knowing that they can take their details, and re-bail them to a later date. This will enable more police officers to stay at the scene of the protest and enable the CPS to review the evidence before deciding what charges if any to bring. It may well lead to larger numbers of arrests on demos.

The police cannot attach additional conditions to the bail – they can only do this after charge.

4.3 Release from Police Station on Police Bail

In recent years we have seen an increase in activists being released from custody without charge on police bail, with a duty to appear at a police station at a later date. This has been to enable the police to liaise with their lawyers and informally with the CPS before deciding which charges, if any, to bring. Nonetheless the police have still been the ones responsible for charging suspects with offences. The law has now been changed, however, so that the CPS will take over responsibility for charging in all but the most routine of cases.

A stated reason for this change is to create more uniformity in charging throughout the country, as there are currently wide discrepancies between police forces with regard to the charging of offences. It is also intended to rectify police incompetence. According to Home Office statistics 55% of cases are inadequately put together by the police and 13 % have to be dropped altogether before trial.

As the law currently stands, when the police do not have enough evidence with which to charge you, they can release you on police bail with a duty to report back to a police station on a specified date. If there is enough evidence with which to charge you, the police may either charge you, offer you a caution (see page 7) or release you on bail. No conditions may be imposed on bail in either case.

Under the new law, if the police have enough evidence to charge you, they will also have the option of referring the your case to the CPS. The CPS will then make the decision as to whether or not you should be charged, or alternatively offered a caution. They may also institute proceedings against you directly by way of the new “written charge” (see below).

The police will be issued with guidelines from the CPS as to which cases should be referred to them.

If you are released on bail under this new procedure, the police must inform you of this fact. They may also impose conditions on your bail, for example a requirement not to enter a certain area.
The procedure outlined above will result in more decisions being made by lawyers rather than police officers on whether to charge suspects with offences.

Activists can expect this procedure to become the norm when they are arrested in the future. An advantage may be that fewer charges will be brought where there is obviously insufficient evidence on which to base them. However, the involvement of the CPS may lead to a more political dimension to prosecutions. Activists will be more likely to be charged for minor offences if they belong to certain campaigns or pressure groups.

As of August 2004, the new procedure is being piloted in Greater Manchester and expected to come in to force nationally by the end of 2004.

4.4 The Written Charge

Under current law, it is usually the police who charge you with an offence or “lay an information” at the magistrates’ court in order for a summons to be issued requiring you to attend court. The Criminal Justice Act 2003 gives an alternative power to “public prosecutors” to charge you with an offence by way of a “written charge”. They must at the same time issue a document known as a “requisition” which requires you to attend court to answer the charge. A set list is provided in the Act of people who may carry out the role of “public prosecutor” and it includes the police, the Crown Prosecution Service, the Attorney General and the Serious Fraud Office.

This new way of charging is designed to make the procedure speedier and less cumbersome than the old method. The police or the Crown Prosecution Service will no longer have to apply to magistrates in order for a summons to be issued. By the issue of the “requisition” they will be able to require you to attend court themselves.

4.5 How the New Procedure will Affect Activists

The principal way in which the new procedure affects activists will be as follows. If you have been arrested and the police think they have enough evidence with which to charge you, then the usual procedure in future will be to release you on police bail and refer the case to the CPS, who will automatically take over the decision as to whether or not to prosecute.

4.6 Offences committed on Bail

Prior to the Criminal Justice Bill 2003, there was a general right to bail in criminal proceedings unless the offence being charged was indictable or triable “either way” and the suspect was on bail at the time of the offence. In such a case it was still possible to get bail but it was more difficult, because the suspect no longer had a right to bail and had to give reasons why he should be given it. The new law extends this situation to cases where a suspect has committed an imprisonable offence whilst on bail for another imprisonable offence.

The white paper on criminal justice noted that nearly a quarter of defendants commit at least one offence on bail. The proposed changes are aimed at rectifying this, by making it harder to get bail if you commit an offence whilst already on bail for another offence.

Here’s an example of how the new law could be used against activists. If you are on bail having been charged with threatening behaviour contrary to Section 4A Public Order Act 1986 (imprisonable) and at a later date you are charged with aggravated trespass (also imprisonable) then you will not be entitled to a “presumption of bail” and the onus will be on you to show why you should be granted it.

4.7 Appeals by the prosecution against bail decisions by magistrates

Prior to the passing of the Criminal Justice Act 2003, the prosecution could appeal against a decision by a magistrate to grant bail, where the offence in question was imprisonable by five years or more imprisonment. This power has now been extended by the Act to cover any imprisonable offence.

This means that if you are given bail by magistrates for a very minor but potentially imprisonable public order offences– for example section 4 Public Order Act 1986 – the prosecution can apply to the Crown Court to have you remanded in custody. The power will probably not be routinely used, but it will be abuse against activists for political purposes.

This article is for information purposes only; its aim is to let people to know their full rights under UK law. Nothing on these pages is absolute as the law is always changing; if in doubt contact a trusted solicitor for further advice. We do not encourage you to break the law.

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If you see any errors, or we have missed any changes to the legal situation please contact us as soon as possible, at info@freebeagles.org, as wrong information can prove costly to people's freedom.

LEGAL ADVICE FOR ACTIVISTS:

4. Bail - the new law