Sir Cliff Richard investigation highlights issues with pre-charge bail – Jonathan Hicks

Sir Cliff Richard is one of many famous faces to have been investigated for allegations of historic sex abuse, with the police and the Crown Prosecution Service ultimately taking no further action.

Although Sir Cliff was never arrested or charged, his ordeal brings into question tactics that are being deployed by police and the necessity for reform regarding lengthy investigations and evidential review.

In August 2014 an investigation was launched into alleged offences, which were said to have taken place between 1958 and 1983, including a high profile raid of the singer’s home.  Sir Cliff, who was abroad at the time of the raid, commented that he felt ‘hung out like live bait’ by the police and the media.  Unfortunately, this account is not unfamiliar; in 2013 the aide to the Duke of Edinburgh, Lt Col Benjamin Herman, was arrested in a similar investigation and subsequently spent 27 months on bail (including 18 months’ pre-charge) before being acquitted by a jury.

In a tactic critics have dubbed as ‘flypaper’, names of suspects (often known to the public) are leaked to the media in anticipation of additional victims and witnesses coming forward, often whilst the suspect is re-bailed on a rolling basis. This, naturally, causes a considerable (and irreversible) impact on the reputation of the suspect and no doubt their health and well-being.

Home Secretary Theresa May led the debate over reform of these practices which, she argues, place a great deal of strain on suspects, and their families’, lives.  In March 2015 she promised the introduction of a reformed system of pre-charge bail which, she suggested, should be limited to 28 days allowing for extensions of up to three-months with approval from a senior police officer and anything lengthier to be permitted by Magistrates. There will also be a presumption of releasing an individual pending further investigation without bail unless it is both necessary and proportionate.

The proposed changes have the exception of serious fraud and complex cases handled by specialist CPS divisions where initial bail will be three months and where the Serious Fraud Office and the CPS can make an internal decision to extend bail to six months.  Theresa May argued that this reform would drive down inappropriate use of police bail but the Association of Chief Police Officers (‘ACPO’) opposed this, mooting that pre-charge bail is essential for securing justice.  One must also consider the amount of cases that would need to be heard before Magistrates and whether the Court system has the capacity for these hearings.

The College of Policing stated in a public consultation that ‘the conditions imposed on this type of bail can substantially restrict the freedom of suspects. This can be particularly distressing for individuals who have been subject to lengthy periods of conditional bail and ultimately not charged with any offence.’  This buttressed an open letter to the Telegraph in 2014 which argued that suspects are punished for months through mental anguish as to whether or not they will be charged.

Although one may believe that 28 days is a relatively short time to carry out an investigation of a certain level of complexity, with the Director of Public Prosecution Alison Saunders concerned that decisions would be made in haste, the current alternative places an arguably disproportionate strain on those accused.

The College of Policing have backed a longer time scale, stating that serious organised crime and HMRC investigations can require substantial and detailed analysis and, more markedly, delays caused by external agencies and third parties. Chris Eyre of ACPO has provided that only in two percent of cases was bail longer than six months, indicating that substantial pre-charge bail periods are an exception rather than the norm. This would support the sentiment that police should not have to be forced to make a decision on insufficient evidence. There is the danger of suspects ‘slipping through the cracks’ and not being brought to justice.

An issue related to pre-charge bail is the length of time the CPS take to review cases before deciding whether to prosecute.  Sir Cliff’s case sat with the CPS for up to eight months (after the police had passed them a file), placing further strain on him personally and further tarnishing his reputation.  The CPS argued that there were a number of complicated factors to take into account when deciding whether to prosecute, however, if the Home Secretary is proposing that pre-charge bail should be held to deadlines, one would argue that the CPS should be making timely decisions.

With the Policing and Criminal Justice Bill currently under legislative scrutiny, the case for reforming investigations and decisions to prosecute is strong.  Although there may not be a one size fits all approach to allegations, more stringent deadlines, rather than best-practice guidelines, would certainly assist prompt recourse for those facing a seemingly endless ordeal. An alternative approach would be to, where possible, arrest suspects at the end of the investigation rather than the beginning.  One must balance this, however, against the impact Theresa May’s proposition could have on our burdened Courts.

Finally, we may soon see an end to ‘flypaper’ leaks with Sir Cliff reportedly bringing actions against South Yorkshire Police and the BBC for misuse of his private information, breaching the Data Protection Act and one would suspect breach of confidence.  If his claims are successful, police and the media may take extra caution before releasing suspects’ names.