By Sarah Leamonth @sarahcactus1

With a Newsnight investigation recently revealing the potentially life-threatening impact of thousands of suspected sex offenders being released under investigation but without restriction, coupled with reports that rape prosecutions are at their lowest level for a decade a serious question that needs addressing is why anyone would report rape to the police.

The everyday reality for survivors of serious sexual offences is being made to wait longer than ever for a court date with little or no protection from reprisals.

So stark is the police’s neglect of the safety of victim-survivors they have recently been subject to a super-complaint based on their ‘failure to use protective measures in cases involving violence against women and girls’.

Behind this neglect is a rarely asked question of whether the purpose of protective measures used by criminal justice agencies are to protect survivors who report rape and to what extent they are effective in practice.

An exploratory study has examined for the very first time the impact on survivors of granting pre-charge bail to suspects of rape, taking into account the significant changes to pre-charge bail legislation implemented in April 2017.

Here are 7 findings from that study that everyone should know about pre-charge bail:

1.       The primary purpose of pre-charge bail is not victim protection

The origin of pre-charge bail was to reduce the number of suspects on remand, in particular those eventually released without charge, along with suspect welfare and monitoring, evidence gathering, acquiring a charge and timely investigations according to the requirements of the Police and Criminal Evidence Act (PACE, 1984).

In 1994, 10 years after it was brought in, the police were allowed to apply conditions to pre-charge bail, one aspect of which was intended: ‘To protect the victim or witnesses from the risk of danger, threats, pressure or other acts by the defendant.’

Police research shows applying bail conditions ‘could provide reassurance’ for survivors but has little impact on suspects. “It may have an impact, but not very often.” (Sexual Offences officer).

2.       Breaching pre-charge bail conditions is not an offence

Where pre-charge bail conditions are applied, failing to attend court or the police station while on bail is an offence however breaching bail conditions is not. The legal framework recognises the inconvenience to the police or court but not the lack of protection of women and children.

When a survivor reports a breach of bail conditions, the police should come out and make a report but often this doesn't happen because officers think "there is no point" due to their belief that pre-charge bail is a 'toothless tiger'.

"Some officers can be a bit lazy with it. Say someone rings 999 and says the person who’s on bail and they’ve raped me, I’ve just seen them down the bottom of my street and the officer will say, we’ll pass that on to the officer in the case.

They won’t come out and have a look and make a report… and the officer might not get it for three or four days. WE know there’s absolutely no point in arresting him because we’re not ready and… it just sort of gets left." (Sexual Offence officer).

“What’s the point?... what’s the point in even… and it takes your voice away from you, it makes you feel so… disempowered and so helpless you think… what’s the point? If they’re [police] not gonna support me and they’re not gonna do anything about [breach of bail conditions], what’s the point of this whole court case? If they’re not gonna protect me… who else is going to?” (Nicole, survivor).

Since breaching bail conditions is not an offence, some police officers see it as actively disruptive to their workloads to arrest and re-bail due to what they view as ‘inadequate’ penalties. 

3.       Protection is not automatic or immediate following reporting: The Safety Gap

When a rape is reported, the police may not be in a position to make an immediate arrest, meaning there is a delay between a survivor reporting and the arrest of the suspect. This also delays any application of bail conditions that might be the only protection a survivor of rape has from the attacker, sometimes by weeks.

I have called this delay between a survivor reporting and the application of any protection, the ‘Safety Gap’.

The safety gap is particularly concerning when women know the suspect, which they do in 90% of cases, and when research evidence shows women who experience sexual and domestic violence are among the groups with the highest risk of reprisals during a criminal justice process.

“I was thinking, they’re gonna come after me. So… I said to them [the police] well what… what can we do… you know, before… before they were arrested? And the aspect of that was… you know, we can’t do anything until they’ve been arrested and put on bail.” (Miracle, survivor).

Protection for rape survivors is not automatic and it is not always immediate following reporting.

4.       Survivors have never been consulted as part of bail legislation or its reform

Despite the origin of the concerns around pre-charge bail specifically relating to sexual offence investigations such as Operation Yewtree, the 2015 review by the Home Affairs Committee, chaired by Keith Vaz, chose not take evidence from survivors but instead questioned the police, CPS and previous suspects of sexual offences.

The Committee recommended that that pre-charge bail be limited to an initial period of 28 days, reduced from three months, with extensions authorised first by a Superintendent, then at Magistrates Court. In addition it was suggested that the presumption to bail introduced by the Bail Act be changed to a ‘presumption to release without bail’. The Home Office pushed through the changes in April, 2017 in spite of the police calling them ‘operationally unworkable’.

Survivors’ voices have yet to be heard in the legal reform debate on bail at any point throughout the process suggesting they were considered irrelevant to the consultation, evidence or decision to change the legislation.

They are only beginning to be heard now due to what could be argued as the entirely predictable impact of the changes on the safety of women such as Kay Richardson, murdered by her estranged husband while he was released under investigation.

5.       Women can apply for Civil Protection Orders at the same time as the suspect is on bail

There is no obstacle stopping survivors from obtaining a Civil Protection Order at the same time as their suspected rapist having bail conditions.

In contrast to bail conditions, breaking the terms of a civil order is an offence and if the police investigation is dropped, bail conditions immediately come to an end however the protection of a civil order will remain intact for as long as the order is valid. There is some confusion about this entitlement between professionals, resulting in the correct advice not always being offered to survivors.

“If someone is on bail they’ll [domestic violence services hub] say, well he’s got bail conditions so that’s the same as an injunction. It’s not, but that’s what they say.” (Sexual Offence officer).

“When the police withdrew the pre-charge or whatever they call it, I’d got a non-mol so it [protection] was just covered anyway with a non-mol that hasn’t been given an end date.” (Rhiannon, survivor).

6.       How do the police assess survivor risk in cases of serious sexual offences?

No data is collected or collated by any justice agency on bail decisions, bail conditions, breaches or responses to breaches at any stage for any offence.

Police research shows pre-charge bail decisions are taken with a high use of discretion by individual officers whose understanding and interpretation of the law around bail is inconsistent. A Sexual Offences officer told me: “Every time we do a job it’s a kind of balancing act, where do we fit on this… it’s a bit of an art”.

There is only one formal mechanism for obtaining the survivor’s perspective of her own safety needs in the form of the Victim Personal Statement (VPS) which aims to allow survivors to ‘express their concerns in relation to bail or the fear of intimidation.’ However in practice it is not considered relevant to decisions on bail conditions, “the VPS itself, at the point of statement… because of the timing of it, we don’t particularly rely on that around bail conditions” (Sexual Offences officer).

As a result, bail conditions can actually reduce a woman’s safety and increase her chance of re-victimisation: “‘When my partner was arrested for raping me, he was actually bailed by the police back to my house, I rang the police and asked what were they thinking of, why don’t the police check this kind of thing out?” (Survivor).

7.       Who fills the gap in survivor protection without pre-charge bail?

"Our office [Sexual Offences Team] conditional bail rate has probably dropped by about 80%. We can’t work this system" (Sexual Offences officer).

Pre-April 2017, bail was used as a method of partnership working between the police and other agencies, for instance to delay social care assessments or to apply safeguarding to potentially difficult decisions on managing perpetrators in a position of trust. Police officers worried organisations such as schools don't have robust enough policies: "Position of trust meetings can hide behind bail conditions and say we’re working in line with what the bail conditions are. Now we’re having to push back & say, what can you do about this?" (Sexual Offence officer).

The police are generally regarded by the public as criminal justice experts, therefore decisive action taken by them in response to an allegation of rape can imply the claim is serious and credible. Therefore it is clear that the huge reduction in police use of pre-charge conditional bail leaves a gap in the safeguarding of survivors, whether adults or children, that needs to be followed by stronger and more comprehensive disciplinary policies within institutions such as schools, universities, workplaces and social care.

This study asked survivors for the first time what their perspective was of bail when granted to suspected rapists. The findings reveal women’s protection and safety is not always immediate, automatic, effective or related to their needs. Furthermore the impact of applying conditional bail can influence the level of support from family, friends, community, workplaces and other agencies.

The protection of survivors of rape needs a root and branch review to identify the full extent of safety gaps and their location in the bail process, exploring their implications for criminal and civil justice legislation, policy and practice. In particular the implementation of immediate and unconditional protection for survivors who report to the police.

Gaps in the safety and protection needs of women who report rape must be addressed from the point of reporting, throughout the criminal justice process and beyond conviction. It is of paramount importance that survivors effectively participate in discussions on legislation and policy to meet these basic needs.

The full study is here: https://cwasu.org/wp-content/uploads/2019/01/Website-full-study-Exploratory-study-of-bail-use-in-rape-cases-1.pdf