New power to appeal bail – the thin end of the wedge?

David Cameron has indicated that he intends to change the law to allow prosecutors to appeal against a Crown Court’s decision to grant bail. Following the announcement, which came as part of Prime Minister’s Questions on Wednesday (11 January 2012), the Ministry of Justice made the following statement: “Defendants who pose a danger to the public should always be remanded in custody while they are awaiting trial. The Government intends to strengthen the law in this area by allowing prosecutors to challenge Crown Court bail decisions where they feel a potentially dangerous prisoner could be bailed.” Although only a preliminary statement, this language does give cause for concern.

Potentially, all defendants may present some danger to the public. Whilst it is clearly not envisaged that the prosecution will appeal against bail in all instances, nonetheless the option will be open to them. It naturally begs the question of where the line will be drawn – something which defendants, regardless of offence, do have a right to know. Furthermore, like the decision to allow prosecution appeals against sentence (Criminal Justice Act 1988) and the removal of the longstanding ‘double jeopardy’ defence (Criminal Justice Act 2003), it is an additional example of the prosecution being given ‘another bite at the cherry’.

In considering what the future holds for appeals against Crown Court bail, it is worth examining what can be learnt from past experience. Before 1989, although a defendant could appeal to have a sentence reduced, it was not possible for it be increased. After a series of high profile cases (most notoriously the 1986 Ealing vicarage burglary and rape case), the law was amended to allow the Attorney General to apply to the Court of Appeal to increase a sentence if it was regarded as ‘unduly lenient’. When asked how he intended to apply the power, Attorney General Sir Patrick Mayhew stated: “Reference is available only for a sentence that is characterised by undue leniency, not for one that is no more than arguably on the lenient side.”

So far, so good. It is, after all, right that in exceptional cases where an unjust error has been made that there should be a mechanism for putting it right. But what followed is interesting. Initially, there were indeed few cases. Between February and November 1989, the Attorney General referred nine cases to the Court of Appeal. Between April 1989 and June 1993, 117 cases were referred (an average of around 30 per year) and that number continued to increase through the 1990s.

Although the numbers are relatively small in the whole context of the criminal justice system, the increase is plain to see. References to the Court of Appeal peaked at 160 in 2001 and stayed relatively high throughout the decade, although the last few years have seen a return to late 1990s levels. The tentative conclusion is that such fluctuation means that ‘exceptional’ can mean different things at different times. So perhaps might ‘unduly lenient’, ‘new and compelling’ or ‘potentially dangerous’?

Clearly appeals against sentence, bail and acquittal are not the same thing and should not be approached as such.  Nonetheless, all are examples of defendants’ protections and liberties being at least partially reduced in order to boost public confidence. If we are willing to learn what we can, where we can, it would be wise to pay attention to the progression of unduly lenient sentences.

Some might say that there is nothing to fear. Laws are made to be exercised and it is only right that the most serious crimes should be properly investigated, tried and retried if necessary. However, we must not make the mistake of assuming that the elimination of double jeopardy will always be a good thing. It did not survive for centuries because it was not important. Equally, we cannot assume that the public are best served by an overriding instinct to keep defendants in custody; after all, many defendants are acquitted.

So far, the double jeopardy exception has been applied carefully to correct mistakes of the past. However, we must remember that, if the number of retrials is to increase, along with opportunities to refuse bail, the chances of other injustices creeping in also increase. Vigilance, discretion and mature discussion remain essential if we are to prevent public confidence in justice from becoming more important than justice itself.

Corker Binning is a law firm specialising in fraud, regulatory and general criminal work of all types. For more information about how we can help you, call us on 0207 353 6000 or visit www.corkerbinning.com.