Misuse of bail conditions

Over the past few years, civil liberties lawyers and campaign groups have seen a growing number of demonstrations where police have made mass arrests of protesters. These protesters are then bailed to return to a police station, pending a decision on charge, yet in many cases only a small minority of those originally arrested go on to be charged.

The bail conditions imposed are often very stringent and may include restrictions prohibiting return to certain geographical areas, including specific areas or boroughs associated with ongoing protests, or restrictions on being able to associate with certain groups of people in public.

The use of strict pre-charge bail conditions in the protest context is a worrying trend that has been condemned by campaign groups such as Netpol and by a UN special rapporteur on the rights to freedom of peaceful assembly and of association. We are concerned that the tactic of mass arrest is being used as a way to deter protesters and allow biometric data to be gathered.

In one instance, our firm represented seven clients who were arrested for obstruction of a bailiff, contrary to section 178 of the Town and Country Planning Act (a non-imprisonable offence) at the Dale Farm eviction in 2011. After being bailed to return, all were offered cautions, reflecting the minor nature of the offence, which some accepted. Others did not and prosecutions against them were ultimately discontinued.

After being interviewed, these clients were bailed for two months, pending a charging decision (in one case, the period was extended), and given strict blanket bail conditions, including a prohibition from entering Essex. The bail conditions appear to have been applied indiscriminately to those arrested and released on bail and constituted a serious restriction on the clients’ freedom of movement and, in some cases, their rights to freedom of expression and/or assembly. As a result, a number were caused particular difficulties, such as being prevented from acting as legal observers, offering practical support to people facing eviction, from posting meaningful updates on social media, and in the case of one protester, from returning to his address.

Bearing in mind that these restrictions often apply to a large group of activists, the ability to protest can be effectively removed for a period – as seen in protests against the British National Party and English Defence League in 2013. We consider it problematic for a condition of this nature to be applied across the board, particularly to protesters of good character and/or no history of committing offences on bail.

Protesters can challenge their bail conditions where they are considered unreasonably wide or strict. This has been done successfully in a number of cases. But this process takes time, and some protesters may be unaware of the possibility without taking legal advice.

The recent announcement by the home secretary on restricting the length of bail terms is welcome, as it would at least put a time limit on bail restrictions. This would avoid protesters being on bail for extended periods, as was the case in with the anti-BNP protesters, most of whose bail conditions remained in force for around three months.

We consider, however, a review of the nature of bail conditions imposed is required in addition to looking at their duration. In many of the examples cited above, having bail conditions of this nature even for a limited period would still have caused significant disruption to the individual’s private life and/or restrictions on their ability to protest. The overuse of strict bail in the protest context suggests that, rather than being used in situations where there are genuine reasons to suspect the individual will fail to surrender, commit further offences on bail or interfere with witnesses, they are, instead, being used to prevent further participation in protest.

This article first appeared in the Law Society Gazette.