PCD Solicitors were instructed to represent a client at Doncaster Magistrates Court and to make a bail variation application on his behalf.
Our client, a professional aged 37 years old, is currently under investigation for the possession of indecent images of children. He has no previous convictions and is therefore regarded as a person of good character in law.
Our client was arrested following a bench warrant being issued to the police by the Magistrates Court. He was arrested on suspicion of having accessed indecent images of children. Various electronic devices were seized, and he was interviewed following his arrest. He is now waiting for the forensic examination of his devices to be completed before the police can confirm whether or not he is in fact in possession of indecent images and are able to provide any evidence that an offence has been committed. The following bail conditions were imposed by the police upon our clients release from custody:
- Not to live and sleep at any address where a child under the age of 18 resides.
- Not to associate with any child under the age of 18 unless another adult is present.
When the police impose bail conditions they must have reasonable grounds to do so. In this case the police had recorded the reasonable ground of ‘Interfering with witnesses or otherwise obstructing the course of justice’ grounds that just do not make sense in such a case.
The above conditions are very common and something we here at PCD Solicitors experience everyday. However, the conditions are unlawful and we represent many clients who are under investigation for offences relating to indecent images and we have a 100% success rate in having the conditions removed completely, enabling families to live together and for parents to be with their children.
The Law
Firstly, it is important to remember that when a person is arrested for offences relating to indecent images of children they are arrested as a result of a suspicion, arising from intelligence and not because there is any evidence that they are guilty. That is the purpose of forensic examinations to provide evidence that may or may not proceed to charges. At PCD Solicitors we have had many clients under investigation for such offences and through our management of the case at this crucial stage the police fail in meeting the evidential standard required to charge or convict our clients.
Secondly, and of most importance to this particular topic is that possessing, making and distributing indecent images of children is not a contact offence. By imposing conditions that prohibit contact with children the police are simply speculating that our client will go on to commit contact offences, this is what makes the condition unlawful, bail conditions must not be speculative, they cannot be imposed just because the office thinks it is right to do so.
The conditions imposed on our client were unrelated to the suspected offences. Any conditions attached to his bail must only be relevant to the matters for which he is being investigated for. Put another way, with no evidence that our client had done or was intending to do anything that would amount to a child contact sexual offence, he could not be made subject to contact-prohibitive conditions.
The case of R v Smith and oths [2001] EWCA Crim 1772 is a key Court of Appeal case that addresses this very issue, although this case specifically relates to prohibitions imposed by way of a Sexual Harm Prevention Order, the same test applies for bail conditions, which is one of necessity.
The test at s.50(1) of the Bail Act 1976 states that any bail and conditions attached to it must be both necessary and proportionate. In our clients case a clear point was made to the court; this being that on no assessment can it be said that our client, under suspicion of having accessed indecent images of children, might interfere with witnesses or obstruct the course of justice unless made subject to conditions that prohibit him from being in the company of any child, or sleeping at an address which any child resides. The ground provided for by the police and the conditions provided to support that ground did not relate to each other.
We also paid attention and highlighted to the court the law under the European Convention of Human Rights and our clients Article 8 right to family life, and the violation of that on both our client and his children due to the bail conditions.
The stresses caused to a suspect in a difficult and sensitive case are vast, but we often experience the distress, upset and anxiety of family members caused by investigations and restrictions placed on a person through bail conditions. The family therefore naturally become part of our consideration in all of our clients cases.
The process
When applying for a bail variation we firstly liaise with the investigating officer to determine whether a variation can be agreed. It is unlikely in such cases the police will agree, and this is because they are not knowledgeable of the law, specifically the case law and legislation that applies to bail. Where an agreement cannot be reached we then prepare an application to the Magistrates Court along with written submissions. These submissions can be drafted by our expert barristers in this field.
Our submissions and application is served on both the police and the courts.
In all submissions and applications made to date PCD Solicitors have succeeded in 100% of the bail variation applications put before the court in indecent images cases.
If you, a family member or friend is currently under investigation and would like to challenge the bail conditions imposed, please contact one of our experienced lawyers for a free no obligation chat on 0151 705 8488, alternatively you can leave an enquiry on our website and we will get in touch with you.