The Police (Detention and Bail) Bill
1. The Police (Detention and Bail) Bill is being
fast-tracked through both Houses of Parliament in order to "reverse"
the effect of a High Court judgment dated 19 May 2011 but published
only on 17 June: namely, R (Chief Constable of Greater Manchester
Police) v Salford Magistrates' Court and Hookway.
2. The ruling of the High Court in the Hookway
case has been appealed to the United Kingdom Supreme Court. A
hearing has been set down for 25 July 2011. On 5 July the Supreme
Court dismissed an application filed by Greater Manchester Police
to stay the effect of the High Court's judgment. In a short statement,
the Court gave the following reasons: that the Government had
announced that they proposed to introduce emergency legislation
on the matter, that the application was unusual, and that it was
questionable whether it was open to the Court to grant a stay.
3. The subject matter of the caseand of
the Billis whether the "detention clock" provided
for by the Police and Criminal Evidence Act 1984, section 41,
continues to run once a suspect has been released on police bail.
For 25 years the understanding has been that it does not. This
means that the police may re-arrest a suspect released on bail,
and detain and question him or her further, as long as the maximum
period of pre-charge detention (that is, 96 hours) is not exceeded.
The ruling in Hookway appears to reverse this understanding.
In a compelling analysis the acknowledged academic expert on the
Police and Criminal Evidence Act, Professor Michael Zander, has
argued that Parliament's intention in passing the Act was that
the detention clock would not run while a suspect was on police
bail (as had been the accepted practice until the Hookway
4. The Bill seeks to "reverse" the
effect of the High Court judgment retrospectively. While understandable
in the context of this Bill, retrospectivity is in principle always
to be guarded against. As JUSTICE have observed, retrospectivity
in statute "offends against the principle of legal certainty
and weakens the rule of law".
Having Parliament legislate retrospectively and having the Supreme
Court adjudicate on what may well then be moot is an unusual prospect.
5. In 2009 we published a report on fast-track
legislation in which we recommended, among other matters, that
a Government introducing fast-track legislation into Parliament
should be expected to comply with certain requirements.
In particular, we recommended that the Government should fully
explain and justify why, in their opinion, it was necessary for
legislation to be fast-tracked.
The then Government accepted our recommendations, and they have
since been complied with.
We are pleased to note that in this instance, too, the explanatory
notes accompanying the Bill explain why fast-tracking is, in the
Government's opinion, necessary.
6. We note that there appears to be cross-party
support for the Bill. We note also that the police have made plain,
including in evidence to Parliament, that there is a strong public
interest in swift action.
We further note that human rights and civil liberties campaigners,
such as Liberty and JUSTICE, have not raised objections to the
substance of the Bill.
7. Notwithstanding all of the above, however,
there is one feature of the Bill which touches upon an issue of
constitutional principle which we draw to the attention of the
House. As noted above, the High Court judgment which this Bill
seeks effectively to "reverse" is itself under appeal
to the UK Supreme Court in litigation which remains ongoing. We
are concerned that asking Parliament to legislate in these highly
unusual circumstances raises difficult issues of constitutional
principle as regards both the separation of powers and the rule
of law. We have noted the constitutionally important distinction
between legislative and adjudicative functions before.
We are concerned that, in the understandable rush to rectify a
problem which the police have identified as being serious and
urgent, insufficient time has been allowed for Parliament fully
to consider the constitutional implications of what it is being
asked to do.
8. It is not for us to say what the effect of
Parliament legislating in advance of the Supreme Court hearing
may be on the Court when it hears the case on 25 July. It may
be that we will need to return to this matter later in the year.
9. In this respect, the circumstances of the
Police (Detention and Bail) Bill are markedly different from those
of the Terrorist Asset-Freezing (Temporary Provisions) Bill in
2010. That legislation was introduced in response to a judgment
of the Supreme Court. Parliament had the advantage, when considering
the legislation, of a considered Supreme Court judgment to assist
it in its deliberations.
10. We note also that several campaigners and
commentators have argued that practices of police bail need more
broadly to be revised.
Owing to its being fast-tracked, this Bill is not the ideal occasion
for these matters to be addressed, but it may be that we will
wish to return to them when, for example, the Protection of Freedoms
Bill is brought to this House later in the year.
1  EWHC 1578 (Admin). Back
R (Chief Constable of Greater Manchester Police) v Salford
Magistrates' Court and Hookway http://www.supremecourt.gov.uk/news/373.html.
Professor Michael Zander QC, The Detention Clock: An Unhelpful
Decision which is Surely Wrong 175 Criminal Law and Justice
Weekly 365 (18 June 2011). Back
JUSTICE, Briefing on the Police (Detention and Bail) Bill, July
2011, para 7. Back
Constitution Committee, 15th Report (2008-2009): Fast-track
Legislation: Constitutional Implications and Safeguards (HL
Paper 116). Back
Ibid, para 186. Back
The bills which have been fast-tracked since that report are:
the Video Recordings Bill (Constitution Committee, 5th Report
(2009-2010) (HL Paper 36)); the Terrorist Asset-Freezing (Temporary
Provisions) Bill (2009-2010); and the Loans to Ireland Bill (2010-2012).
The House of Commons Home Affairs Committee took evidence from
Jim Barker-McCardle, Chief Constable of Essex and Commander Steve
Bloomfield, Metropolitan Police on 5 July 2011. The transcript
will be available on the Committee's website http://www.parliament.uk/homeaffairscom.
Most recently in our written submission to the Joint Committee
on the Draft Detention of Terrorist Suspects (Temporary Extension)
Bills: Report (2010-2012) (HL Paper 161, HC Paper 893) DTS 3,
See JUSTICE, Briefing on the Police (Detention and Bail) Bill,
July 2011, para 6. Back
See, for example, The Guardian, 3 July 2011 (letters to
the editor); Liberty, Briefing on the Police (Detention and
Bail) Bill, July 2011, paras 9-12; and JUSTICE, Briefing
on the Police (Detention and Bail) Bill, July 2011, paras