Today’s newspapers are expressing great concern over the implications of District Judge Jonathon Finestein’s ruling on the Police and Criminal Evidence Act 1984 (PACE).
The rules are that the police must charge a suspect no later than 96 hours after arrest: otherwise the suspect must be released and may not be re-arrested unless it can be justified by new evidence. Until now, the police have been interpreting the law in such a way that a release on police bail causes the clock to stop running on the 96 hours; District Judge Jonathon Finestein – upheld on appeal to the High Court – has found that this practise is not lawful.
The immediate ramifications of this decision are, admittedly, legion – here’s the Mail in its typical, foaming-at-the-mouth, end-of-days mode:
Tens of thousands of killers, rapists and thugs could escape prosecution after an alarming legal judgment.
The ruling tore up 25 years of bail rules for criminal suspects, left a gaping hole in police powers to protect the public and could undermine a string of major investigations.
It means alleged offenders can no longer be released on bail for weeks or months while officers conduct painstaking investigations. Instead they must be charged within a maximum of 96 hours of arrest.
Senior officers have branded the ruling ‘bizarre’, and indicated that offenders are already being released from custody as a result. Ministers could be asked to bring in emergency laws to reverse the decision within days.
I would first observe that this ruling is not ‘bizarre’. It has been arrived at by a judge and upheld on appeal. This suggests to me that at the very least, the law contains some ambiguity but on the balance of probabilities, my inclination would be to support the Judge’s view because it upholds the basic tenet of our justice system – innocent until proven guilty.
As the police have been interpreting the law, that tenet has become guilty until we’ve exhausted every possibility to prove it and then reluctantly and belatedly reinstating your freedom – but everybody will still think you’re guilty because we arrested you: no smoke without fire.
Depriving somebody of their liberty and accusing them of criminal activity shouldn’t be decisions to be taken lightly but the police have effectively taken it upon themselves to act as judge, jury and jailer to the extent that arrest and detention appear to have become default positions. This innocent person provides a case in point.
There is another aspect of our law which implies that District Judge Jonathon Finestein is correct. Suspected terrorists may be held for up to 14 days, a special dispensation that recognises the potential complexity of evidence-gathering in crimes of terror (given its current global reach), the depraved nature of terrorists and the sheer awfulness of random, mass slaughter. But 14 days is exactly that – 14 days and no bail whereas a person arrested for something relatively trivial may be bailed and investigated for months. That can’t be right.. can it?
The Mail is, of course, correct in its assertion that many dangerous criminals may go free following this decision. However, this is should not be depicted as the fault of the decision – or the Judge making it – but of the police for the way in which they have chosen to interpret PACE.
The Mail is incorrect, though, in suggesting that the decision has “left a gaping hole in police powers to protect the public“. What is the problem with the police gathering sufficent evidence on which to bring a prosecution before arresting and charging the suspect? It seems to me that the public is no less vulnerable to a bailed suspect than it is to somebody roaming free who may later be found to be a dangerous criminal: both are at large. The difference is that an innocent person has not been deprived of liberty and falsely accused.
I sincerely hope that the government resists the urge to pass hurried, new legislation at the behest of men like Sir Norman Bettison, chief constable of West Yorkshire Police, who clearly has little idea of the concept of justice when he remarked;
‘We are running round like headless chickens wondering what this means to the nature of justice.
A much better use of the government’s time would be to examine how we arrived at a situation in which anybody can be arrested, thrown into a cell and then released on bail – still under suspicion – while the police take months finding the evidence to justify the initial arrest.