The Curious Case Of Pre Charge Bail Reform When Law Does Change Policing

The Curious Case Of Pre Charge Bail Reform When Law Does Change Policing Speaker: Dr. Martin Date: 11 March 2024 Criminological Wisdom Some Truisms - "Legal rules cannot explain police behaviors, haven't you read Bittner (1974)?" - "Working in low visibility, and wielding significant power, officers can choose when and how to deploy legal rules - have a look at Ericson (1981) or McConville, Sanders and Leng (1991)?" - "Law is a resource to manage 'trouble'... think of Chatterton (1979) or Waddington (1994)!" - "Often the law is permissive, vague, discretionary - remember McBarnet (1983)?" - "And when the law isn't, it's no match for informal working - rules, cultural traits and organizational pressures - have you read the police culture literature!?" The Late 1990s: The High-Water Mark For Law And Policing Scholarship? - A critique of the field (and its focus) - Contingency of law in policing 'conjunctural circumstances' - Law's 'indirect and facultative' role in policing Revival and refinement of Reiner's typology of decision-making - Empirical: administrative scrutiny and 'paper burden' from external sources, involving higher visibility - Conceptual: communication 'systems', 'rules', 'formats' and 'technologies - Reiner (1993) + Walker (2000) Law Enforcement Internal Organization General Policy Policing styles House-keeping Individual Cases Use of legal powers Personnel Management Catching Up With Contemporary (Administrative) Law - Extent of statutory provisions that empower and regulate the police • General:  Human Rights Act 1998; Children's Act 2004; Equality Act 2010; Data Protection Act 2018 • Specific:  Covert policing; criminal investigations; public order policing; disposal from custody/pre-charge bail - The paradigm of human rights • "[A] significant number of overarching challenges to the exercise of police power are brought by way of claims for judicial review. This is particularly so where an policy or practice of general application is in issue." (Ventham et al, 2022: 209) - Policing and the expansion of judicial review - Three examples: • Investigations and prosecutions • Data retention and use of info on police databases • Extraction of information from electronic devices An Updated (Working) Typology Of Law And Police Behaviour Law Enforcement Internal Organisation Communications Systems Legislation Legal thresholds, standards, presumptions, exclusions, timeframes General Policy Individual Cases Internal (Policing Use (or non-use) of styles; force policies legal powers and guidance) External (Codes of Practice; Authorised, Professional Practice; Home Office Guidance) Allocation of specific Housekeeping (e.g. powers/duties/ role/size/resources of supervision specific police divisions) Reporting Communication requirements; duties rules, formats, to consult technologies Personnel Management Engagement, completion, compliance (or not) with the 'paper burden' The Case Study Of Pre-Charge Bail - Background • PACE 1984, ss.37(7) and 37(4) • A "classic example of a low level broad discretionary power which is largely uncontrolled." (Cape and Edwards, 2010: 534) - Controversy and Home Office push for reform: 2014-17 - Legislative amendments to PACE 1984 by the Policing and Crime Act 2017: • Presumption of release without bail • Emergence of new disposal type: 'Release Under Investigation' • Threshold for bail: necessary and proportionate 'in all the circumstances', having regard to any conditions imposed. • Applicable Bail Periods and authorization: Up to 28 days: Inspector; 28 days-3 months: Superintendent; Beyond 3 months: Magistrates - Phase 1: Research Interviews • 50 semi-structured interviews with police officers in: response policing, detectives, sexual violence and domestic abuse investigators and custody. - Phase II: Quantitative analysis • Police custody records April 2015- April 2019 (2 years before/after reforms). 260,000 offences, 20+ variables. • - Descriptive and regression analyses. Phase III: Analysis of authorization forms • Content analysis of 500 PCB authorization forms. • Internal recording of officers' justification for PCB (necessity and proportionality criteria). Explanative - The 'Conjunctural Circumstances' Law Legal thresholds, Internal (Policing styles; force Use (or non-use) Enforcement standards, presumptions, policies and guidance) of legal powers exclusions, timeframes External (Codes of Practice; APP; HO Guidance) • Presumption of • Internal: Force policy • "We had release without on 'necessity and an edict bail proportionality come down" • Pre-conditions • External: for bail a. Initially none. • The b. HMICFRS → messenge • Conditions for NPCC → Statutory rs extension of bail Guidance • "The murmurin gs in the backgrou nd" Explanative - The 'Conjunctural Circumstances' Internal Organization Allocation of specific powers/duties/ supervision • Internal (and external) authorizatio n and extension process • Time limits ('Applicable Bail Period') Housekeeping (e.g. Exercise of legal role/size/resources of powers/duties/supervision specific police divisions) • The pool of • Avoidance authorizing a. Rank structure officers • and b. 'trouble' • Resourcing of c. Law's investigations 'underreach and capacity d. Managing enforce bail workload conditions • Engagement (up to a point) a. "What the point in doing this?" Police, Crime, Sentencing and Courts Act 2022 (and Phase 2 of the project...) - Removal of the presumption against the use of pre- charge bail - Duty to seek views of alleged victims on PCB conditions • "It is my priority to deliver justice for victims and Kay's Law will put victims at the heart of the bail system, empower police to ensure that suspects are closely monitored, and protect the public." (Priti Patel) - Significant changes to the authorization process and timescales - No offence of breaching pre-charge bail, but effort to encourage officers to arrest for breach of PCB: • Delaying detention clock • Duty to notify victim of the offence of bail conditions Conclusion: Does this case study require us to re-evaluate some of the law in policing truisms of criminological wisdom?