When Law does change Policing: the Curious Case of pre-charge bail reform

It is criminological wisdom that law reform does not change police behaviour – at least not to any great extent or with much success. This wisdom is expressed through a series of truisms that headline the ‘law in policing’ scholarship, a once lively field of study which has, ironically, shrunk in the last two decades despite law reform continuing apace. Returning to the classic ‘law in policing’ literature, this paper seeks to explore its truisms in contemporary policing and regulation – an era of greater police professionalism and accountability, in which risk-management and human rights have gained prominence. I draw on a recent case study that would appear to unsettle the criminological wisdom: the legislative saga of pre-charge bail reform. Pre-charge bail was a police disposal power commonly used to control a suspect’s behaviour while an investigation continued. In 2017, responding to political controversy, Parliament overhauled pre-charge bail to provide greater accountability, using a series of regulatory devices. Not only did this change police behaviour – it did so with such scale and consequence that Parliament legislated once more, in 2022, to address a series of adverse effects. Law did change policing – and in exaggerated and unexpected ways. But how did it do so? What were the so-called ‘conjunctural circumstances’ of contemporary policing that might explain why? And does this case study require us to re-evaluate some of the truisms on which criminological wisdom rests? Answering these questions based on a multi-method research project with a large police force in England and Wales, this paper is a modest endeavour at injecting some verve into a well-trodden body of work in which legal cynicism abounds. 

Dr Richard Martin is an Assistant Professor at LSE Law School. His research on policing lies at the intersection of criminal justice, human rights and public law. His recent book, Policing Human Rights (OUP: 2021), offers a sociologically inspired and empirically grounded accounts of how officers encounter and experience human rights law in their everyday work. Richard completed his MSc and DPhil at Oxford’s Centre for Criminology.