Freddie Starr Case Proves 'Justice Delayed Is Justice Denied' - The Law Must Change

08/05/2014 15:04 BST | Updated 08/07/2014 10:59 BST

Justice delayed is Justice denied - it is a vital and long-held tenet of the British legal system. The announcement this week by the crown prosecution service that they are to bring no charges against Freddie Starr after 19 months of him being under arrest and kept on bail sadly shows yet again how that vital concept is being increasingly ignored by the state.

It brings into focus once again the plight of individuals in every walk of life being arrested and kept on police bail for prolonged periods of time without charge often to facilitate what are little more than fishing expeditions by the police.

All experienced defence lawyers will tell you tales of clients who have been kept on bail for periods running into years rather than months prior to a decision being taken as to whether or not to institute charges against them. Of course, some of that experience is based upon complex fraud allegations or allegations of money laundering which, we are assured by police officers, requires a lengthy period of time to investigate.

But by now means all, as the Freddie Starr case shows - the unsuccessful failed police investigation against him did not relate to fraud and related instead to allegations of misconduct of a sexual nature.

I repeat, after his highly-public arrest in late 2012 the famous comedian and TV personality was then kept on endless police bail for 19 months before the decision announced yesterday that he was to face no prosecution. The effect on him and his life was clearly profound, all to no avail.

One recalls the high profile example of my client Neil Wallis, former deputy editor of the News of the World, who was arrested over allegations of phone-hacking and who was kept on police bail for 20 months himself, prior to an announcement that no charges would be preferred against him. Mr Wallis has subsequently led calls for a reform of the system which allows such a situation to occur. In light of his personal experiences this is not surprising. He lost his job, while on bail he was unemployable, and the experience had major impact on every area of his life. If nothing else, as with Mr Starr who was forced to cancel a major tour, it is impossible for him to recapture almost two lost years of his financial and professional career. Mr Wallis has also documented the devastating consequences in his personal life. Fortunately he has rebuilt his career, and one hopes Mr Starr will be able to do so too.

Clearly, though, the impact of such an ordeal on Freddie Starr has taken its toll. One only has to view the images captured in photographs or on TV, and to read his harrowing interviews, to see that he is no longer the man he was.

But it is vital to stress this does not only happen in high-profile cases - there are many thousands of other criminal investigations where the abuse of endless bail to ordinary citizens has and is happening on a daily basis.

How does this occur? Under the Police & Criminal Evidence Act 1984 the police have powers to hold an individual in custody under arrest for an initial period of 24 hours which can then be extended by a further 12 hours upon the authorisation of a superintendent. Thereafter the individual must be brought before the local magistrates' court who, ultimately, have powers to extend the period of time for which an individual can be held, in a non-terrorist case, for up to 96 hours in total.

However, the police can and, as a matter of routine, do interview individuals after arrest for only a few hours at a time then bail them to return to the police station to a specified date which is, invariably, months away. Thereafter, and it must be stressed that it is the norm rather than the exception, the initial return date will often be put back yet again without explanation to some date in the future whilst enquiries continue apparently endlessly - this will frequently, but not always, be done administratively and without the individual even being required to attend the Police Station.

The police can, literally, keep this going for years - as long as they don't hit the vital barrier of 24 or 36 hours of custody in total.

All the time, throughout this process, the individual concerned is dangled on the end of a piece of string. Their life is in limbo, they cannot make professional or personal plans with confidence since they are unaware as to how the investigation will proceed and with what end result. Their careers will invariably be rudely interrupted. The potential domestic impact is obvious.

During the time spent on police bail a skilful defence solicitor can elicit information from the police as to the likely course of the investigation and the possible result. However, the police are NOT required to disclose any such information to the defence solicitor and it can be classed as an art form the task of "winkling out" whatever information one can from investigating officers. The point is, the individual suspect will remain in the dark for what can seem like an endless period of time.

During this time, the police and crown prosecution service effectively have the life of the suspect in their hands. There is currently no avenue for intervention by the courts in the often endless pre-charge bail process.

So, what can be recommended to improve, to some extent, the current situation whereby suspects are faced with indeterminable uncertainty in their lives?

One suggestion winning support from many concerned legal experts is the possibility of judicial intervention after a specified period of time - for instance, six months. If, after six months, the police and prosecution are not in a position to institute charges then there could be a legal requirement, introduced by statute, requiring them to release the suspect from arrest and bail, without charge.

Should the police and prosecution wish to keep the individual suspect under arrest on bail then they can make an application to a Judge - possibly a district judge in the magistrates' court or preferably a crown court judge in the crown court. The hearing would take place inter-partes - in other words the defence would be entitled to appear and make representations to the Judge.

At the conclusion of the hearing, if the judge is satisfied that there are sufficient grounds to justify an extension in the period of time for the suspect to be kept on police bail then he can make such an extension for perhaps up to a further six months, at the expiration of which, if appropriate a further application could be made by the police and prosecution back to the same court. The judge would hear evidence, on oath, from a senior investigating officer who could be cross-examined on behalf of the suspect.

This is food for thought and merits serious consideration as an alternative to the current draconian and unfettered discretion which lies in the hands of the police post-arrest and pre-charge.

It is worth remembering, of course, that the police do not need to arrest an individual in order to question him. The introduction of such a proposal would perhaps focus the minds of investigating officers on whether an arrest is truly necessary, as opposed to a "grand standing" exercise designed to attract publicity. Recent examples of "grand standing arrests" would include my client Mr Wallis, several others caught up in the hacking investigation, and also, arguably, the comedian Jim Davidson who was arrested at Heathrow Airport upon his return to the UK whilst on en route to appear in the Celebrity Big Brother TV programme!

This focusing of police minds is to be encouraged - there is a view amongst defence lawyers, which I share, that the police too often these days see an arrest as a precursor to the gathering of evidence against a suspect. This should not be the case - an arrest should occur once the police have some evidence to justify that arrest. The arrest should not constitute a fishing expedition which, sadly and all too often, appears to be the case.

Individuals to whom the police wish to speak can, and are, invited to be questioned under caution - the examples of Mr Starr, Mr Wallis and Mr Davidson referred to above would, no doubt, be agreeable to such a proposal.

The power of arrest has potentially heinous consequences for the suspect on the receiving end - it should be exercised more sparingly, with more consideration and with more scrutiny.

The introduction of judicial oversight over prolonged periods of police bail should perhaps now be introduced. In an age of ever more sophisticated investigation techniques, many of them time consuming, it is the right juncture to act.

That principle of "Justice delayed is justice denied" is too important to be abandoned.