O, R (On the Application Of) v Metropolitan Police

Police bail may lawfully continue where an investigation remains ongoing and there is a rational basis for compelling attendance at the police station, even where the suspect has been on bail for a substantial period. Conditions must be necessary for a statutory purpose, including securing surrender, preventing further offences, preventing interference with witnesses or protecting the suspect. An irrelevant consideration, such as sending a message to a complainant, does not invalidate the decision where it was not the true basis for imposing or continuing bail. Judicial review applies the ordinary Wednesbury standard, with heightened scrutiny where Article 5 is engaged. Courts should be exceptionally reluctant to interfere with an ongoing investigation.

The claimant challenged the Metropolitan Police’s decision, treated as made on 23 March 2015, to continue conditional police bail rather than release him without bail. He had been arrested following allegations by his former wife of sexual assault and rape. He had remained on bail while the police investigation, including inquiries abroad, continued.

The claimant argued that the reasons given for refusing cancellation were outside the statutory purposes of bail, that there was no objective basis for bail or its conditions, and that continuation had become disproportionate, including because it affected his visa application. The Divisional Court considered the statutory powers governing police bail, the relevance of Article 5, and whether the decision was unlawful or disproportionate.

1. Application dismissed. The claimant had not shown that the decision to continue bail or the conditions was unlawful.
2. Under section 37(2) of the Police and Criminal Evidence Act 1984, a custody officer may release an arrested person on bail or without bail where there is insufficient evidence to charge. Bail without conditions may be used where it is necessary to compel attendance at specified future dates, particularly during an ongoing investigation. The decision is reviewable for irrationality.
3. The conditions were supported by the statutory purposes in section 3A(5) of the Bail Act 1976, including securing surrender, preventing offences and preventing interference with witnesses. The serious allegation, the possible sentence, the claimant’s ability to travel and the risk of contact with the complainant provided an objective basis for continuing the conditions.
4. The reference in the police email to sending the wrong message to the complainant was irrelevant to the statutory decision. However, the court found that it was a response to the claimant’s representations and was not the basis on which bail or the conditions had been imposed or continued. The lawful reasons recorded in the bail condition form remained sufficient.
5. The court considered the length of the bail period and the claimant’s conduct while on bail. It declined to treat the investigation as shown to be unduly prolonged and held that a court should be exceptionally reluctant to intervene in an ongoing investigation, citing R(ABC) v Director of Public Prosecutions [2014] EWHC 3286 (Admin).
6. The court ordered the claimant to pay the defendant’s costs, summarily assessed at £5,040.60, payable within 21 days.