Alice from FiLiA discusses: Government consultation on pre-charge bail with Sarah Learmonth

Alice: Welcome to FiLiA podcasts. I'm Alice and I'm joined by Sarah Learmonth. The focus of this episode is quite a specific one. We're going to talk about the Government's current consultation on pre-charge bail for sexual assault, domestic abuse and stalking cases. And we're going to talk about why, if you are someone who's been affected by this, we're encouraging you to make your voice heard by submitting to the consultation.

We're very lucky to be talking to Sarah because she's someone who is an authority on this. So Sarah, just tell us a bit about your work. 

Sarah: I started studying this a couple of years ago, longer than that, actually maybe three years ago, having worked at a Rape Crisis Centre. I talked to the Independent Sexual Violence Advisors about what aspects of their work they thought would benefit from more academic exploration and bail was one of them. And at that point it was just at the start of the Government implementing some reforms in 2017. 

So, I started this journey, not really knowing much about the bail process or about what other research might have been out there, but discovered that there were a lot of issues with bail and that women had never really been asked before what their perspective of the bail process was.

Alice: Which is amazing that women had never kind of been, been consulted before. 

Sarah: Yeah, it was, it was quite shocking. When I did my work on the literature review, I kept trying to second guess myself. I just assumed that there was something out there that I'd missed and it turns out that victims of any offense have never been asked for their views on bail before. 

The government took testimony from the CPS, from the police and from previous suspects of sexual offenses but never considered taking any testimony at all from survivors. And I was really shocked and, to be frank, angered by that.

But then when I started researching pre-charge bail, it just became another piece of evidence to show that the purpose of bail is not to protect survivors, as we are told by the criminal justice agencies, it's actually a process that is intended to monitor suspects and to keep investigations to a timeframe and protecting victims and survivors is very, very secondary.

Alice: So I should just say that clearly, we're going to talk about pre-charge bail and we're going to talk about the system and its impact on survivors. So we are going to be talking about topics that include violence against women and sexual assaults. We're not going to go into graphic detail on any of these types of crimes.

 We're going to be talking about the system rather than the crimes themselves. But please do take care of yourself and switch off if you think that you'll find this triggering or obsessing, and if you'd like to submit to the consultation, but you would rather not listen to this discussion then we'll put details on how to submit evidence in the podcast description. And the deadline is April the 29th. 

So Sarah, you mentioned kind of the current laws on pre-charge bail, for kind of legal luddites like me: What is pre-charge bail? And when is it given to people? 

Sarah: When you report to the police, say for instance, you report domestic abuse. The police can apply at that point, or any point after that, they can apply pre-charge bail to the suspect. 

It's generally a method of managing suspects who the police are investigating. So they're not at a point where they can charge them, but they are at a point where they are gathering evidence. And so in order for bail to be applied, the suspect has to be arrested. So they have to be arrested, brought in, they'll be questioned. And then if bail is going to be applied, they can either have police bail pre-charge bail whilst the police investigate. Or if they think that there's going to be some public protection required, then they'll apply conditions. So you can have conditional pre-charge bail. 

The issue with that is that there's no formal method of risk assessment. So if you are a woman who has suffered sexual violence, there is no formal risk assessment in terms of what those conditions are going to be. And your fears as a victim of those offenses are not necessarily going to provide the evidence that the police might use to place specific conditions that you feel protect you in the context that you are in.

 Pre-charge bail is predominantly for the police to manage suspects. The other thing is that if a suspect is put on pre-charge bail, if they fail to present at court or present to the police station, when they're supposed to is a chargeable offense.

But if they breach their bail conditions, that is not enforceable. Even though those conditions are placed on them, for instance, not to go down the same street that the victim lives or not to be with children under 16, if they breach those conditions, nothing can be done apart from re-arrest and re-bailing. 

Alice: Wow. If they breach those conditions, essentially, they get a slap on the wrist and they get away with it. 

Sarah: Yeah. Not even a slap on the wrist. I mean, a lot of police officers believe that the penalties, of which there are none, are so inadequate that it's actually disruptive to their work to re-arrest and re-bail.

Plus, there is a kind of understanding from the police of what constitutes intimidation or what will constitute a breach of those conditions, where they would be prepared to go out and re-arrest, and there is a big difference between what they understand that to be and what, say for instance, a victim of child sexual abuse might understand that to be.

 So where you've been in a relationship where there's been a pattern of abuse over many years, when your perpetrator, sends you for instance, an emoji over Facebook. You know, just a thumbs up or something that sounds and looks to other people, incredibly benign, a police officer is very, very unlikely to pursue that. 

But for you as a survivor, it just forms that pattern of control and a manipulation of your life, of your thoughts of your psychological wellbeing that is a kind of power play. And that is very, very unlikely to be followed up by a police officer in the main, because you know, they will consider that to be very trivial, but actually to you as a survivor, you may not feel that that way at all about it.

Alice: And in your blog, I should say Sarah wrote a really interesting blog for FiLiA about some of the problems with the current pre-charge bail conditions. You say survivors are being made to wait longer than ever for a court date with little or no protection due to a catastrophic change to bail legislation in 2017.

So what happened in 2017? 

Sarah: After Operation Yew Tree and celebrities had been arrested, put on pre-charge bail and then subsequently released without charge, they did a consultation. They had people in the Home Affairs Select Committee and the only people they had in were the police, the CPS and previously suspected perpetrators of sexual offenses subsequently released. But they didn't ask any victims or survivors. And so what happened was that they reduced how long pre-charge bail can be used for all offenses, including serious sexual offenses, domestic abuse, and stalking, and the method of managing most suspects that the police were investigating, moved to something called ‘released under investigation’ or RUI. but the problem with RUI, Released Under Investigation, is the police have no powers to require suspects to report to them, no powers to place conditions on them, no time limits within which to complete their investigation against them. And if you do want to apply pre-charge bail, there is a presumption not to bail, to keep people under investigation, to keep them coming in for voluntary interviews, rather than put bail and conditions on them. 

As a result, in the police force that I studied, their use of bail in sexual offenses cases dropped by 80% because the police were saying they couldn't work the system, not because of the survivors not needing safeguarding.

So the 2017 reform introduced the presumption against the use of pre-charge bail with police guidance, that an investigation against a suspect should be done just as a voluntary interview in almost all cases. So pre-charge bail had to be justified and because they had never asked any victims or survivors, that justification of ‘necessary and proportionate’ the guidance around that, doesn't talk about the need to protect women and children from abusive men. 

Domestic abuse is not specifically mentioned. They mentioned things like the economic wellbeing of the UK and national security but nothing about protecting women and girls. So the reform limited the use of pre-charge bail to an initial 28 days with extensions up to three months, which required an authorisation from a senior officer. Then any extension beyond three months needed permission from the magistrate’s court. 

The only problem was, and this was raised with the Home Affairs Select Committee, to be fair by both the CPS and the police, is that sexual offenses, just the forensic analysis of phones takes an average of 60 days. So you would need more than the initial 28-day pre-charged bail. You'd need probably double that for any sexual offense. And so sexual offenses became very difficult in terms of protection for women because the police just stopped using bail virtually completely. A 60% reduction for domestic abuse cases.

So the impact and the consequences for women and girls were immediate. 

Alice: What did that impact look like? Because it sounds like, unless I've misunderstood, we have kind of two problems here, which is that one, the legislation didn't really work anyway as it was, but then it's been changed

in 2017. So cases of domestic abuse especially are even less likely to fit neatly into the criteria for pre-charge bail. 

Sarah: You know, pre-charge bail didn't really work for victims of serious sexual offenses and domestic abuse particularly for various reasons, but without any input from victims and survivors, that was obscured from view.

And then when the reforms came in in 2017, it was a catastrophic error on behalf of the home office to not ask the views of victims and survivors, but only talk to alleged perpetrators. And so the consequences of the changes were entirely predictable. 

When I spoke to police officers and I spoke to women for my research, they said that, if suspects of violent and sexual offenses are released under investigation with no constraints on them, women will be even less protected with even less reassurance than they had before. 

And so now we are seeing the numbers withdrawing their support for police investigations has gone up threefold, half of rape victims choosing not to support an investigation.

And you know, when you think that 90% of women and girls know the person who has sexually abused them. You can completely understand it because survivor’s experiences weren't thought to have any relevance. And because the police force has never been required to report data on when and why they use pre-charge bail, we've got ourselves in this appalling situation where suspects are being released under investigation. We don't know what they've been arrested for. We don't know whether they've intimidated witnesses or victims, how long they've been under investigation and because the use of bail has dropped dramatically and it's not being used to prevent alleged abusers from returning to their home. One woman at least has lost her life as a result, a woman called Kay Richardson. Her husband was sent back home after she reported domestic abuse and he murdered her. 

Alice: I wanted to ask about domestic abuse specifically, actually. So is that how it works? So say a woman is living with a man and she reports a domestic abuse incident to the police, then under these rules under these conditions, does the man just get to go home?

Sarah: It depends on how the police assess the risk. In domestic abuse cases, there is a different level of assessment, but without any data, there's no data collated by any justice agency on any bail decisions, bail conditions, breaches, police responses to breaches, it's difficult to say what usually happens. 

Conditional bail is marketed by criminal justice agencies as a protection method for women and it's marketed so strongly that women really believe that it will protect them. And I think the understanding from the public is that if it is a serious crime that's being reported, there will be an immediate arrest, immediate conditional bail, and that she will be immediately protected. And that just is not what happens. 

Even before 2017, the actions of the police were based on their need for evidence during the investigation, and if they weren't ready to arrest him, then you could report a really serious or violent sexual offense and then wait days, weeks, or months before he was arrested and then subsequently bailed with any conditions. And during that time you would be completely unprotected.

There isn’t a clear path. It's not what always happens. A lot of it is based on the discretion and the experience of the officers. 

And another issue with that is that where the experience and the discretion of the officer isn't good enough and protection is inadequate, other organisations around that woman, for instance, social care, her workplace or university, you know, educational institution, defer to the police. So the police are considered to be the criminal justice experts. If they don't think that there's enough evidence to arrest and bail with conditions, then safeguarding from other places is very much lacking. Those other institutions and those other agencies will not step in to protect the woman. She will be left. 

So it's about sending a of very strong message that safeguarding is either needed. If it's applied. And where it is not applied, which is now in most cases, it sends a very strong message to those agencies that safeguarding is not required, which isn't true at all.

Alice: I just wanted to read out a testimony from a, from a police officer, which I found particularly shocking. And this was in your research and the police officer said: 

 “If someone rings 999, and says the person who raped me has just been seen down at the bottom of my street, then the officer will say, oh, we'll pass that on to the officer that's handling the case”. 

And sometimes those calls won't be followed up for three or four days, presumably because there's nothing apart from re-arrest and re-release, there's nothing that the police can really do about that. 

Sarah: Yeah. There's various issues there. One is that the police are supposed to come out. They're not supposed to just wait for the officer in charge to have the time to come out. They are supposed to come out immediately and check that out and reassure t the victim survivor. So you are entitled to that. If you ring up and the perpetrator is on pre-charge bail and his conditions say he is not supposed to be down your street, they're supposed to come out straight away.

So because the police choose to effectively they don't tell survivors that bail conditions are un-enforceable. So because they don't tell them, survivors are not aware that either that they are entitled to an immediate police response and that that response can only be arrest and reapplying the same conditions. So women are left in this gap where their safety and protection is not a priority and there's no legislation to protect them, but they're not told that by the police. 

Sometimes the police do everything they can and sometimes they don't and survivors are just lacking in the knowledge to be able to ask for what they are entitled to.

I think that is hopefully one of the things that this consultation might change. Bail conditions may well become enforceable. If we, as women, ask for that to be the case.  

Alice: So if you feel that your bail conditions are inadequate, is there anything else that you can do at the moment to protect yourself?

Sarah: Yeah, there's a bit of confusion around whether you can have pre-charged bail conditions and you can apply for a civil protection order such as a Domestic Violence Protection Order. And you absolutely can. I know that some of the Independent Domestic Violence Advisors have been told by some police officers and some domestic violence organisations that you can't. They call it having two bites of the cherry. 

But there’s nothing to stop you, as a woman, applying for your own protection order at the same time as having bail conditions. The benefit of that will be that the Protection Order will generally last for longer than the bail conditions So if the police decide there’s no further action to take, the bail conditions stop immediately. But if you've got a protection order that will continue. 

And also breaches of that order are enforceable, whereas breaches of your bail conditions are not. So I think if, if you feel that your bail conditions are inadequate apply for a Civil Protection Order. There are various there's stalking orders, there's DPOs, there's restraining orders and so on. 

So yeah, those two things can be quite complimentary. And if you are told you can't have both that's incorrect information. 

Alice: So let's talk a bit about the consultation. There'd already been one in 2017. Why is another one happening now? What's triggered this?

Sarah:  Because the changes they made in 2017 were catastrophic for victims and survivors. You know, the impact and consequence for women has been that they are completely unprotected. They weren't brilliantly protected by pre-charge bail before. but now there's nothing. And that combined with the message of safeguarding and safeguarding needs that bail gives other agencies. So for instance social care, has resulted in women being unprotected across the board. And I think on top of that, the time scales for investigations are incredibly long and drawn out. I think they've gone from two years to looking like some people are waiting for three years to get to court and women are withdrawing. 

So the justice process is not working. There isn't a procedure that keeps women in the investigation because they feel so unsafe and they were unsafe before, but they are even more unsafe now.

And the other side of this consultation, the other thing that I think they have realised is that they need the voices of women. So they need victims to come forward and survivors to come forward and say, this is my experience of pre-charge bail. This is my experience of RUI released under investigation or voluntary interview. This is what happened to me. And this is why it's important that you do something about it. They've never had that information before, because they've never asked for it. 

Alice: So now that they are asking for it, What's the legislative or the guideline change that you are hoping for? What would a better system look like? 

Sarah: So the things I think I found most shocking were that women who come forward reporting violent crimes or sexual offenses or domestic abuse are not immediately protected. 

So number one, we want immediate protection for women. Number two, we want that to be automatic. So if it's not pre-charge bail, then we need some kind of restraining order, a civil order, a domestic violence protection order, something that gives them the protection that they need and that is enforceable straight away.

 I think that there needs to be some kind of assessment in cases of sexual violence. So sexual violence in all its forms in terms of taking account of the context in which her abuse has happened. How long it's been happening for, how he's used power and control as part of that coercion and so on. And that bail conditions should have to acknowledge that somehow. 

That has never been the case that, that isn't something that has happened before. There is there's no formal method to take her views into account. 

And I think on top of that, the other thing about bail is that the conditions are very rarely altered.

So varying the conditions is very unlikely. So if the conditions are inadequate or if you are in an investigation process for three years, and life can change in three years, the police are most unlikely to vary your conditions to accommodate any changes in your life. So for instance, we had an 18-year-old girl who reported when she was 15 and her mother was dying and she had to go to the hospital and sit in the same room with her abuser whilst she sat with her mother because they didn't vary the conditions. They could have done, but they didn't. 

Another woman had conditions that meant that her husband moved into a house opposite her. So he wasn't allowed to go into her house, he had to be 200 yards away from where she lived. So he got a house that was just over 200 yards away and just sat and watched her. And she went to the police and said, will you vary the conditions so that he doesn't live opposite me, and they refused. 

So I think the fact that investigations are longer and that life changes during those investigations, I think there should be a far more flexible approach to bail conditions. And I don't think RUI released under investigation or a voluntary interview should be used at all for serious sexual offenses, domestic abuse or stalking. 

Alice: How do you think this would change things for victims of survivors of sexual assault, domestic abuse and stalking?

Sarah: I think it would change things, in that, I think their protection would change. They would be protected. They'd be confident in terms of their entitlement to spaces that they felt were safe to them, spaces outside of their house, their workplaces, their schools, their universities, they would feel that they had been listened to.

And I think that process of trying to claim back your status, if you like, your power is the word that I'm thinking of. But in order to claim space, you know, if your mum is dying and you have to be in that hospital room, you should be able to claim that space as safe for you. You should be able to go to her funeral and feel safe. You should be able to have a community and family responses that acknowledge the seriousness of the allegations that you've made and your own credibility within that. It sounds a lot, but actually that is what bail can give people. 

Alice:  Absolutely. So in terms of protecting women, we've talked about the need for women who, when reporting violent crime, to be automatically protected and also for assessment in cases of sexual violence or domestic abuse to take into account the context of that abuse.

 I guess something that you've mentioned a few times during this interview is data and the lack of it and the need for more of it. Do you think that data, if we had more of it, could go some way to solving some of these issues, or do you think that that kind of comes after these really fundamental changes that need to be made at a basic level?

Sarah: No. I think data is absolutely essential. I think if we'd had data on how bail was used at all points. So there's bail can be applied pre-charge it can be applied post-charge and it can also be applied post-conviction. So you can be a convicted rapist and still be bailed back home.

And what's important about that is that there are, within any bail process because obviously they're not in prison, there are risks and it's about assessing the risk, of that suspect, to the public, to the victims and witnesses and to themselves as well. 

So what we also don't know is: we don't know when bail is applied, we don't know what the conditions are. We don't know how many breaches of those conditions there were. And we don't know how many suspects absconded or committed suicide. 

Anecdotally, the police officers that I interviewed in sexual offense unit said that they felt that there were quite a few. That they had high suicide rate amongst men who had allegations of serious sexual offenses against them. 

Now, part of the reason for the police remanding people is for their own safety, but also for victims of sexual violence. 

One of the women that I interviewed, her perpetrator was found guilty on all counts and he was bailed back to his house and on the day of sentencing he killed himself, but left a note saying: You know, she'd made it all up - even though he'd actually pleaded guilty to some of the offenses against her. And it was serious child abuse, and she was made homeless from that day. Her family kicked her out.

So you kind of think, oh yeah, suicide, you know that’s good riddance but that isn't how it is for survivors. That's not how a lot of them think because these people are generally very significant in their lives. They might be a member of their family, for instance. And it's important for them to see the justice process through. They are very committed to seeing justice done, and that is not justice. 

And so without data, you can't shine a spotlight on any of these issues and all of these issues are vital, not just for victims and survivors, but also for suspects themselves. 

Alice: And speaking of data, there might be women listening to this who are thinking, well, I've been affected by this, but I don’t know anything about the law so I don't have anything to contribute or they might be thinking, well, why should I contribute to this consultation, nothing's going to change anyway. 

Why is their testimony so important? And why do we need to hear from them? 

Sarah: One of the problems, one of the flaws in the consultations previously is that they have only come from a legislative and criminal justice background. So asking the CPS and the police will only ever get you the legislative response, what they are missing massively is the experience, the everyday experience of women and girls who have gone through abuse and who then have trusted the criminal justice system only to find that their trust may have been misplaced, or even if it hasn't been misplaced, they need to know what works for victims and survivors and what doesn't. And it's your testimony and your experience that is of primary importance, I think in this consultation.

 If you look through the template response that's attached to the podcast, then you will recognise elements within that template response that relate to you. And you can take that and use it to put together your own response based on your own experiences. Or you can just use that template response and reply in the same way as the template suggests. 

So I think the most important thing is that they need to know what your experiences are because they have never, ever asked victims or survivors before. And that's why we're in the situation that we're in.

We need to make pre-charge bail work for women and girls. It's vital. 

Alice: Thank you very much for talking to us. As a reminder, the deadline for submissions to the consultation is April the 29th there's a link to the submission template that Sarah mentioned in the description and there are also links to the two excellent articles that Sarah has written for FiLiA about this.

If you would like to make a submission, but you feel like you require additional support in writing it, please do contact the FiLiA policy team and we'll see if we can help you, we'll put an email address in the description, Sarah. Thank you so much. And good luck with your future campaigning. 

Sarah: Thank you. Thanks. It was a pleasure.