Select Committee on Home Affairs Second Report


31. We have already expressed our support for the proposal to transfer responsibility for charging from the police to the Crown Prosecution Service (Clause 23 and Schedule 2). So far, the results from pilot studies in selected areas have been very encouraging (although these are early and provisional results and therefore to be treated with caution).[34] We also welcome the proposal to weight the court's discretion against granting bail to a defendant who commits an offence while already on bail (Clause 12) and we have no objection to the extension of the prosecution's right of appeal (Clause 15). However, there are other provisions which concern us and it is to these that we now turn.


32. Clause 16 relates to bail for defendants who test positive for Class A drugs. In essence, this will allow the court to impose a condition on bail that the defendant undergo an assessment (as to his or her propensity to misuse Class A drugs) and any follow-up treatment that has been offered. The defendant must be an adult and the offence must be related to Class A drugs in the ways that are specified in the clause.[35] Under the Bill, the court will only be able to impose this bail condition if the defendant agrees to undergo the assessment/treatment.[36] However, Clause 16 will also create a presumption against bail if the defendant refuses to agree to undergo any assessment or treatment that is offered.

33. It has been suggested that this provision is unnecessary because "if a court is satisfied that there is a causal link between drug taking and offending, bail will be refused in any event".[37] In our view, this misses the purpose of Clause 16. As we understand it, the purpose is not simply to extend the grounds for refusing bail (although clearly it does), but to encourage Class A drug users to undergo treatment.

34. The Government set out its position in Criminal Justice: The Way Ahead:

    "Drug addicted defendants can be extremely prolific in their offending. Offenders using heroin or crack/cocaine are estimated to commit property offences at twice the rate of offenders who do not use drugs...It is...important that the courts have available an effective range of options for dealing with prolific drug misusing defendants. We will be piloting...a provision for courts to require, as a condition of bail, that defendants identified as drug users undergo drug testing, and where appropriate and with their consent, enter drug treatment. For many such defendants, complying with a treatment programme could help them avoid custody".[38]

35. Ian Blair, the Deputy Commissioner for the Metropolitan Police, quoted figures to us which suggest that there is currently a very low level of voluntary uptake for treatment. He said:

    "The statistics are quite unnerving. In the Hackney pilot of compulsory drugs testing for everybody brought into the police station and charged, it is 62 per cent testing positive for opiates. Yet only seven per cent of those people agree voluntarily to any form of drugs referral scheme after arrest".[39]

36. We recognise that a large proportion of property crime is attributable to misuse of Class A drugs, such as heroin, cocaine and 'crack'.[40] We fully support the policy, which underpins Clause 16, of encouraging drug misusers to undergo treatment. This accords with our conclusions earlier this year, following our inquiry into the Government's drugs policy.[41]

37. Whether or not Clause 16 will work in practice is dependent on two things. First, the ability to enforce the bail condition and secondly, the availability of treatment, to which the bail condition relates. On the first point, the Association of Police Authorities have highlighted some potential problems. We were told that, in some pilot areas, a "large percentage" of those who test positive for Class A drugs do not comply with drug treatment orders "thus ending back in court for re-sentencing".[42]

38. We are accordingly concerned about the practicality of enforcing such conditions against drugs misusers who consent to the bail condition, but then fail to comply with the treatment. We look forward to hearing from the Home Office on this point.

39. On the second point, we are pleased to note the provisions under Clause 16 will only apply in areas within which treatment is available.[43] Therefore a person "could not be refused bail simply on the basis that he had refused treatment where there was not treatment available".[44] As the Minister conceded, there is not enough treatment available at the moment.[45] We were informed that in one police area there is an eight month waiting list for detainees willing to submit to treatment.[46] The Minister informed us that, within the next few weeks, he would hope to set out his proposals as to "where and when treatment will be available" for the purposes of Clause 16.[47]

40. We fully support the proposal to impose a 'treatment' condition on the bail of drug misusers. It is essential that sufficient resources are made available for the provision of treatment. We look forward to hearing from the Minister as to his proposals for making appropriate treatment more widely available for purposes of Clause 16.


41. Schedule 2 will (amongst other things) extend police powers to impose conditions on bail. At present, the police can only impose conditions on bail after a suspect has been charged with an offence.[48] Under the Bill, that power will be extended to the period before charge. Importantly, this will only apply when the police have referred the case to the Crown Prosecution for a decision on charging (which will presumably exclude "routine" offences).[49] This will mean that, where it appears necessary to do so, conditions may be imposed to secure that:

(a)  the person accused surrenders to custody;

(b)  he does not commit an offence while on bail;

(c)  he does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or another person.[50]

42. In practice, this will leave scope for a range of conditions to be imposed, some of which may be onerous for the suspect. The choice may include a condition to report to the police station periodically (eg every day), to live at a specified address (which might not be the suspect's home address) and to remain at that address between certain hours under curfew, to report any change of address, or even to surrender his passport. If the accused is subject to a curfew, he may also be required to present himself at the door during the curfew hours, if asked to do so by the police.[51]

43. The justification for this measure is closely linked to the transfer of responsibility for charging from the police to the Crown Prosecution Service. The Government's White Paper, Justice for All, lays emphasis on "getting the charge right" first time.[52] However, the pilots indicate that one of consequences of CPS charging will be greater delays in the period between arrest and charge.[53] Consequently, the police are strongly in favour of the proposal for pre-charge conditional bail as, without it, they will have limited powers to deal with the suspect in the interim period (eg because detention is strictly time limited—see above para 16).[54] The Police Federation told us that this is "the very necessary concomitant of suspects being released on bail pending CPS charging decisions".[55]

44. The case against this proposal is that a suspect should not have unreasonable or onerous restrictions imposed on his liberty before there is sufficient evidence to charge him with any offence. Against that argument, both the Minister and the police said that conditional bail was less onerous than detention and was not, therefore, "detrimental to the interests of the defendant".[56] The Minister also suggested that the measure would only apply where the police think there is enough evidence to charge, but we have not found any express provision in the Bill which limits the power in this way.[57]

45. There are genuine concerns about the way in which this power would be used. There would be no objection if the police granted conditional bail in circumstances where they would previously have detained the suspect. The concern is if they use it in circumstances where they would have previously given unconditional bail.[58] This would lead to a 'net widening' effect.

46. We accept that a power to impose conditions on bail before charge is a necessary and logical part of the move towards charging by the Crown Prosecution Service. However, we would expect this power to be used only where necessary and preferably to avoid detaining a suspect. We recommend that the Association of Chief Police Officers should draft and circulate appropriate guidelines.


47. Conditions on bail can significantly restrict a person's movements and liberty. For this reason, a number of our witnesses argued that the proposal should incorporate proper safeguards. When we put these to the Minister, he said that he was satisfied that the Bill already contained sufficient protection for the suspect:

48. While we welcome the safeguards provided in Schedule 2, in relation to pre-charge conditional bail, we are not convinced that they are sufficient. We therefore considered the following suggestions, which were put to us by our witnesses:

(a)  a strict time limit on the length of conditional bail before charge;[60]

(b)  a requirement that the decision to impose conditions is taken by a police officer not below the rank of Inspector;[61]

(c)  a requirement that the officer has "substantial grounds" for believing that the conditions are necessary for the specified purposes;[62]

(d)  a right of appeal with access to public funding.[63]

49. Time limit: As presently drafted, the Bill will allow a custody officer to impose conditions for potentially very lengthy periods of time. This is difficult to justify before there is sufficient evidence to charge because there is every chance that the suspect is innocent. When we put this point to John Burbeck, ACPO lead on criminal justice matters, he conceded that "reasonable time limits" were necessary and suggested a period of four weeks.[64] Roger Smith, Director of JUSTICE, argued that the time limit should be shorter.[65]

50. In the light of Mr. Burbeck's evidence, we are surprised that the Bill makes no provision for a time limit. However, the Minister argued that it was not appropriate to put a time limit in primary legislation, as it was an issue which should be decided by the custody officer when imposing the conditions. He also emphasised that, under the Bill, the suspect could apply to the magistrates' court to discharge the conditions if, for example, the duration of conditional bail had become excessive.[66]

51. As presently drafted, we believe the Bill gives rise to a risk that onerous conditions may be allowed to run indefinitely. For this reason, we would prefer to see a time limit included in the primary legislation, rather than left to the custody sergeant when imposing the conditions. We agree with John Burbeck, of the Association of Chief Police Officers, that four weeks would be a reasonable time limit and recommend that the Bill be amended accordingly.

52. By an officer not below the rank of an Inspector: The Bill will allow a custody officer to impose conditions on bail before charge. A custody officer must be of at least the rank of sergeant.[67] There is no provision for a review of his decision by an officer of a higher rank. This contrasts with the position for detention before charge, which must be reviewed periodically by an Inspector or higher rank. Furthermore, any extension of detention beyond the initial 24 hour limit must be authorised by a Superintendent or higher rank.[68] The Bar Council and Criminal Bar Association argue that:

    "...there is a strong argument for [requiring the decision to be taken by an Inspector]...bearing in mind that here, one is concerned with possible restrictions upon a suspect in circumstances where police suspicions may be wholly unfounded. At the very least, where the suspect seeks a variation in bail conditions, adjudication on this should be the responsibility of an officer not below the rank of inspector".[69]

53. However, we understand that a custody officer can already impose conditions on bail after charge has been brought. The Minister said:

    "As far as the custody sergeant is concerned, we think he or she is experienced; it is an appropriate level at which to do it; it requires the consent of the defendant."[70]

54. We believe that the custody sergeant is an officer with an appropriate level of experience for the responsibility of imposing bail conditions before charge because, unlike detention, conditional bail requires the consent of the prospective defendant.

55. Substantial grounds for believing the conditions are necessary: As presently drafted, the Bill will allow a custody officer to impose such conditions on bail as "appears... necessary" to secure that (a) the person accused surrenders to custody; (b) he does not commit an offence while on bail; and (c) he does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or another person.[71]

56. We are not convinced that a stronger requirement (such as "substantial grounds for believing") would make any significant difference to police bail decisions in practice.

57. Availability of public funding for right of appeal: As presently drafted, the Bill will allow the suspect to apply to the magistrates' court to vary the conditions on bail. In this context, "vary" means "imposing further conditions after bail is granted, or varying or rescinding conditions".[72] We were told that access to public funding to make such an application would require express statutory provision.[73] We understand this to mean access to full legal aid and representation at court, which at present is only available once a suspect is charged. Limited public funding is already available before charge but it is unclear as to whether this would adequately support an application to vary bail conditions with legal advice/assistance.[74]

58. There may, therefore, be a case for extending the provision of public funding to suspects before charge.

34   Home Office, Charging Suspects: Early Involvement by CPS. A pilot: Report, 22 July 2002 and Charging Suspects: Early Involvement by the CPS. A Pilot: Stage 2 evaluation-Addendum, 25 September 2002. See also, Q 332, Ian Chisholm. Back

35   Either (a) the offence is having possession of a Class A drug, or (b) the person's misuse of a Class A drug was a cause of, or a motive for, the offence. Bail Act 1976, Schedule 1, Part 1, para 6B(c), as amended by Clause 16(4) of the Criminal Justice Bill. Back

36   Bail Act 1976, s 3(6D)(c), as amended by Clause 16 of the Criminal Justice Bill. Back

37   JUSTICE, Response to the Criminal Justice White Paper, para 33. Back

38   Criminal Justice: The Way Ahead, Cm 5074, paras 2.39-2.40. Back

39   Q 30. Back

40   Third Report from the Home Affairs Committee, Session 2001-02, The Government's Drugs Policy: Is it Working? (HC 313-I), para 36. Back

41   Ibid, para 274. Back

42   Association of Police Authorities, Justice for All: Response of the Association of Police Authorities, October 2002, para 33. Back

43   Bail Act 1976, s 3(6C), as amended by the Criminal Justice Bill. Back

44   Q 327, Lord Falconer of Thoroton QC (Minister of State at the Home Office). Back

45   Q 326. See also Q 30, Ian Blair and Q 165, Peter Rook QC. Back

46   Justice for All: Response of the Association of Police Authorities, October 2002, para 34. Back

47   Q 326. Back

48   Police and Criminal Evidence Act 1984, s 47(1A). Back

49   Police and Criminal Evidence Act 1984, s 37(7A), as amended by s 23 and sched 2 of the Criminal Justice Bill. See also Justice for All, Cm 5563, para 3.31. Back

50   Ibid, and Bail Act 1976, s 3(6). Back

51   R (CPS) v Chorley Justices [2002] EWHC 2162 Admin. Back

52   Justice for All, Cm 5563, paras 3.29-3.33. Back

53   Home Office, Charging Suspects: Early Involvement by the CPS. A Pilot: Stage 2 Evaluation-Addendum, 25 September 2002, para 3.8. Back

54   See for example Q 44, John Burbeck; Q 10, Ian Blair. Back

55   Ev 86, para 13. Back

56   Q 317. See also Q 6, John Burbeck. Back

57   Qq 317, 323. Back

58   See for example Ev 70-72, The Law Society. Back

59   Q 324. Back

60   See for example Ev 68, para 4(c), JUSTICE. Back

61   Q 160, Peter Rook QC. Back

62   The General Council of the Bar and The Criminal Bar Association, Response to the Criminal Justice White Paper "Justice for All", October 2002, p 54, para 9a. Back

63   See for example Q 157, Rodney Warren. Back

64   Qq 7, 17. Back

65   Q 160. Back

66   Qq 319, 320. Back

67   Police and Criminal Evidence Act 1984, s 36(3). Back

68   Ibid, ss 40(1), 42(1). Back

69   The General Council of the Bar/The Criminal Bar Association, Response to the Criminal Justice White Paper "Justice for All", October 2002, p 55. Back

70   Q 319. Back

71   Bail Act 1976, s 3(6). Back

72   Schedule 2 makes amendment to s 47 of the Police and Criminal Evidence Act 1984. The new section 47(1E) provides that "vary" shall have the same meaning as under s 2(2) of the Bail Act 1976. Back

73   Q 157, Rodney Warren, The Law Society. Back

74   At the time of writing, we were awaiting clarification from the Home Office on this issue. Back

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