The Secret Barrister
Page 10
And as Rio vented, and as Alan, and the solicitor, Denise, listened, nodded, ummed and awwed in the right places, it struck me – and still strikes today, as an uncomfortable, welcome reminder whenever I picture Rio and his earnest, angry indignation – just how inestimable the impact of losing your liberty on remand can be. Everything you have built over the course of a lifetime – your relationships, your family, your employment, your income, your home – is suddenly, without notice, snatched away from you and placed on a high shelf beyond your reach. There’s usually no time to get your affairs in order. If you have been on bail before conviction, you will at least have been able to plan for your impending incarceration. Detention in remand effectively starts the moment you are arrested, when the police turn up unexpectedly one idle Tuesday afternoon while you’re midway through hanging up the washing, or as you arrive home from a double shift. From that moment, your freedom is the property of the state. You can be detained at the police station overnight, taken to court from the police cells and then formally remanded until trial. It could be months, if not years, before you are returned to normality.
And every day that passes is another day that your life is continuing without you in it. Your partner going about their business. Your job still needing to be done. Your children hitting their developmental milestones. Rent accumulating and bills piling up, and the consequences of their neglect – dismissal, eviction, repossession, disconnection – awaiting you upon your release, or, more painfully, exacted upon your loved ones as you watch their suffering helplessly through the prison bars.
For the guilty, it is easy to dismiss this as the unpleasant, but not undeserved, consequence of committing a criminal offence. And, if you are convicted, any time spent remanded in custody will automatically count as time served on your ultimate sentence,5 so you haven’t lost anything. In fact, in such cases, you may have gained, as the privileges regime in prison is more favourable for remand prisoners than for the convicted, so you will have spent part of your sentence in more hospitable surroundings than had you been bailed and then required to serve your full sentence as a serving prisoner.
But for the not guilty, for the innocent forcibly removed from their homes and families and locked in a fetid cell for twenty-three hours a day for months, if not years, of their lives, there is nothing. No compensation. No assistance in piecing together, or even sweeping up, the fragments of your shattered existence. Not even an apology. The jury return with their not guilty verdict, your barrister asks the judge to discharge you from the dock and you are released into the big wide world without so much as a ‘sorry about that, old bean’. You can’t even, as some enterprising defendant argued before the Court of Appeal, ask a court to order that those wasted months count towards a prison sentence for a future offence.6 Those six months of hell, and the consequent, irreparable destruction wrought on the lives of you and your beloved, are written off as the price we – you – pay as a citizen living in our justice system. If the procedure that led to your remand was correctly followed, then your substantive innocence is immaterial.
This is the position in which roughly one in seven remanded defendants – over 67,000 people in 2016 – find themselves.7 Nearly 15 per cent of remand prisoners are acquitted or not proceeded against. And, among this number, as it happened, was Rio. He was acquitted. The jury did not accept Lori’s claims, and Rio was found not guilty on every count. The time spent on remand was something he was just expected to accept, forgive and forget.
To me, this cannot be right. It can’t be fair, on the most fundamental level, that the state can sweep in, turn your life upside down and waltz out again, like a remorseless, localized tornado, without so much as an apology. Not even a recognition, post facto, in depersonalized bureaucrat-speak that The State Regrets That You Were Imprisoned. I think of this when I meet those clients, like Rio, who are court regulars, livid at the world, spilling over with molten hate for the police, for the courts, for civil society. Their collected grievances and protestations of injustice are not always simply bywords for reflexive frustration at being caught, or a rootless, ingrained Fuck You, I Won’t Do What You Tell Me. Part of their rage against the machine will be the – I think justified – sense of persecution inculcated by the regular, uncompensated loss of time, of liberty, in police cells, or on remand, for things they didn’t actually do. And for many it’s an increasingly vicious circle, because once you’ve had bail refused the first time, it’s likely to be refused the next occasion you are accused. And the next.
The same argument pertains to the many more innocents subject to conditional bail prior to acquittal, whose liberty is curtailed by other means, such as a restrictive curfew preventing them from leaving the house every evening, or visiting friends or family at long distance, or going on holiday. Or those who are excluded from entering parts of their home town. Or who suffer the social embarrassment and physical discomfort of having a chunky electronic monitoring tag on their ankle visibly branding them a person of suspicion. No apology follows the not guilty verdict. No compensation. Just be grateful you weren’t convicted, and be on your way, ma’am.
And if the state is unwilling to contemplate the notion of apology or compensation, arrogant in the assumption that those hit hardest are those for whom public sympathy will never register on opinion polls, it should at the very least ensure that the procedure by which bail decisions should be made is properly respected. I think we must accept that a properly working system will still inevitably result in the remand of some people who will be acquitted, but our focus should be on maximizing, as best we can, the quality of bail decisions, to minimize the risk of incarcerating the innocent who pose no significant risk, and directing limited prosecutorial, prison and police resources towards restricting the liberty of those defendants who are genuinely likely to upset the course of justice by abusing bail.
And yet, despite there being, for all concerned, an obvious imperative in ensuring that determinations of bail are treated with rigour and care, the courtroom reality reveals something markedly, shockingly different.
Before looking at the theory, the first imported misapprehension to dispel is that bail rarely has anything to do with money. We are not, contrary to what a client of mine ostentatiously whipping out his chequebook in court once assumed, concerned with a question of ‘posting bail’ American-style by handing over large wads of cash. In the Middle Ages that was very much the done thing, and much parliamentary effort was expended on stopping judges maliciously detaining suspects by deliberately setting the bail bond at an unaffordable level (a practice ultimately outlawed in the Bill of Rights).8 Today, while the court still has the power to order as a condition of bail that a forfeitable security (money paid into court by a defendant) or surety (money paid into court by a third party) be paid, financial means are rarely determinative of a grant of bail.
Instead, the legal starting point is that every accused person has a general right to bail.9 From there, the legislation lays down the process by which the court may disapply the presumption. For one, the right to bail doesn’t apply if you’re charged with murder, or are a convicted manslaughterer or rapist accused of a further, similar offence. In those cases, the law considers you something of a potential menace, and the onus is on you to persuade the court that you should, exceptionally, be granted bail.
For the remaining dishes on the criminal offence buffet, the right to bail is engaged unless certain exceptions apply. And it is argument over the applicability of these exemptions that forms the subject of most contested bail applications. The exact test varies depending on whether the alleged offence is indictable (triable at the Crown Court) or summary (only triable at the magistrates’ court), but as an overview, if you are charged with an imprisonable offence and meet any of the following criteria, the court is generally entitled to withhold bail:
(a) Where there are substantial grounds for believing that the defendant, if bailed, would:
— Fail to surrender to cus
tody
— Commit an offence while on bail
— Interfere with witnesses or otherwise obstruct the course of justice
— Cause injury or fear of injury to an ‘associated person’ (usually a partner in a domestic violence case)
(b) Where the defendant was already on bail at the date of (allegedly) committing the offence
(c) Where the defendant has already been granted bail in these proceedings and has failed to surrender or has breached his bail conditions
(d) Where the court is satisfied that the defendant should be kept in custody for his own protection
(e) Where the defendant is already a serving prisoner
(f) Where there has been insufficient time to obtain the information needed to make a decision on bail
When making an assessment under (a) above, the court can have regard (non-exhaustively) to the following:
— The nature and seriousness of the alleged offence (in Rio’s case, plainly very serious)
— The likely sentence (for Rio, a prison sentence well into double figures)
— Character, including previous convictions and community ties (Rio was no stranger to the courts)
— The strength of the evidence (on its face, a credible account provided by Lori)
— The defendant’s previous record of being granted bail (Rio had failed to surrender when granted bail on several previous occasions)
— The risk that the defendant will engage in conduct likely to cause injury (the prosecution submitted that Rio may seek to intimidate Lori into retracting her complaint)
Finally, if we are still pre-trial and there is ‘no real prospect’ of a custodial sentence upon conviction – i.e. if the offence is really not that serious – then (a), (b) and (c) do not apply.
If, as mentioned previously, the magistrates’ court refuses bail and an appeal is made to the Crown Court, the exact same framework applies again from scratch.
I set out the law in some detail to overwork the following point: the withholding of bail is a deliberately involved process. The use of remand is tightly regulated, and there is a statutory duty10 upon the court to fully record the reasons why bail is refused, and why the various bail conditions provided for in the legislation – such as an electronically monitored curfew; ‘signing on’ at a police station X times a week; non-contact with prosecution witnesses; surrendering passports; paying a surety or security – can’t allay the court’s concerns. This deference to liberty is reflected in the careful drafting of the Bail Act, the associated Criminal Procedure Rules, centuries of High Court judgments, European Union law and the jurisprudence of the European Court of Human Rights.
It’s a shame it’s not reflected in practice.
The problems start in the magistrates’ court at the first appearance. In keeping with the established theme of this venue, applications are made and decisions taken at speed on the basis of incomplete, and sometimes wholly inaccurate, information.
Despite the fact that the police will have obtained enough evidence to support a charge – i.e. sufficient evidence to establish ‘a realistic prospect of conviction’ – this available evidence will rarely be given to the defence at the first appearance. The rules instead require only that the prosecution supply the defence with a summary of the facts of the alleged offence, and a copy of the defendant’s previous convictions.11 This summary, known as an MG5, is prepared by the police. The first thing you are taught as a pupil is not to believe what the MG5 says. Because while it is generally accurate, quite often it is not. This is not through malice; rather it is usually an inevitable knock-on of the pressures of time and resources under which under-staffed police forces operate. Nevertheless, a close reading of the witness statements upon which the MG5 is based will often reveal a different composition from that painted by the police. Those witness statements, however, are rarely available at the first appearance.
A 2016 research report into pre-trial detention also found that lists of previous convictions provided were out of date, and in some cases the defence were not even given a charge sheet setting out exactly what offence the defendant faced. The defence solicitor discussing the case meaningfully with the prosecutor was often not an option due to the workload – up to thirty-five cases in a court day – placing ‘a premium on speed rather than thoroughness, both in terms of preparation and court time’.12
So the Bail Act specifically requires the court to consider the strength of the prosecution evidence when assessing whether the prosecution’s objections to bail are justified. But if the court has not seen the evidence, and is instead reliant solely on a police summary of dubious accuracy, it is impossible for this properly to be done. What happens instead, one finds, is that the magistrates’ inherent pro-prosecution disposition kicks in, and they not only accept the accuracy of what the prosecution assert, but, particularly in cases involving serious allegations, turn the presumption in favour of bail on its head, and require the defence to convince the court why the defendant should have bail. Terrified, it seems, of being the ones to release a dangerous lunatic onto the streets, the very mention of a charge involving serious violence, drugs or sex is usually enough for the mags to render the law redundant. In the 2016 study, even a former prosecutor ruefully opined on the pro-prosecution attitudes that prevail at bail applications.13
It is perhaps unsurprising therefore that magistrates often fail to comply with their duty to give proper reasons for refusing bail. More times than my breaking heart can sustain have I heard the phrase, ‘We refuse bail because this is a serious offence,’ or ‘We think there is a strong case against you,’ both of which may be true, but neither of which suffices as a reason for withholding bail. The findings of the report conclude that, in failing to give adequate reasons for their decisions, magistrates ‘routinely breached’ the standards of the European Convention on Human Rights.14
Against this backdrop, if the case involves a serious allegation and is being sent to the Crown Court, some defence solicitors don’t even bother making representations in the mags, saving their breath for an application to a Crown Court judge in chambers, by which time further, meaningful material may have emerged from the prosecution file.
I use ‘may’ with caution. In the Crown Court, while judges are usually, and quite properly, much more demanding of the prosecution, the problems with getting hold of prosecutorial information persist. When I am instructed to prosecute a Crown Court bail application and receive the brief (nowadays electronic, in the olden days you’d pick up the file at court), it is pot luck whether there is anything included beyond the defence’s written application. And even that isn’t guaranteed.
Because applications are made early on in proceedings, for obvious reasons – everyone wants bail as soon as possible – the evidence available is often little more than what the parties had at the magistrates’ court, and submissions are still often largely premised on the assumed veracity of the MG5. If it later emerges that the evidence paints a different picture, you might, if lucky, be able to persuade a judge that there has been a ‘change of circumstances’ that permits you to make a renewed bail application, but that is entirely in the lap of the judge.
However, the most tired refrain, in both courts, laments the inexplicable blockages in the channels of communication between the CPS and the police. Bail applications in the Crown Court are usually made at twenty-four hours’ notice, one of the purposes being to allow the police and CPS an opportunity to verify assertions made in the written bail application, such as proposed bail addresses. Often, a defendant cannot be bailed to his home address, as he shares it with the girlfriend who’s saying that he beat her, or it’s a hop, skip and jump from the pub he allegedly torched, and so the application will offer up a suitable bail address many miles away where he can patiently await trial in the law-abiding fashion to which he is accustomed.
The police will probe the availability and suitability of the proposed address with a good old-fashioned knock on. T
he bobbies go round, speak to the owner, check it’s not a crack den crammed with malleable prosecution witnesses, and come back to the CPS with an aye or nay.
It is obviously vital that this be done, even if the police think there’s no way on earth that the defendant is getting out on bail, because, if the judge grants bail in principle, the court will rightly expect the prosecution to immediately voice any objections to the proposed conditions and bail address. The court is mightily disappointed by the prosecutor standing there bleating, ‘Your Honour, I am afraid I don’t have that information available.’
But disappointed the court often is. An enormous proportion of bail applications that I prosecute start and end with me standing wordlessly, mouth agape like some nattily dressed pilchard as the judge intones the five words that comprise the bulk of every prosecutor’s auditory diet – Why Hasn’t This Been Done? The answer is rarely available, and even more rarely satisfactory. Sometimes the CPS don’t notify the police of the bail application. Sometimes the police don’t notify the CPS of the outcome of their enquiries. Sometimes they try to, but the computer system is down, or the fax is broken. Sometimes the police don’t have the resources to carry out an address check at twenty-four hours’ notice. Sometimes the occupant will have been out at work when the police called, and the officers haven’t had the time to go back.
And while judges typically allow one, sometimes even two short adjournments for these checks to be completed, they will eventually lose patience with prosecutorial blunders, and one of two things will happen. The more proprosecution judges will find a way to blame the defence, and bail will be refused through no fault at all of the defendant. Or the more exasperated judges will simply grant bail on the defence’s terms.