An update on Police Bail

July 29, 2021

Anna Bond & Emily Hassell

Anna Bond and Emily Hassell discuss the duration of pre-charge bail, 2017 reforms to pre-charge bail, and the legality of extending these measures

Introduction

1. Under part 4 of the Police and Criminal Evidence Act 1984 (PACE), the police in England and Wales can grant pre-charge bail (police bail) to individuals arrested on suspicion of a criminal offence but where there are no grounds to keep them in detention whilst the investigation continues (they can only keep a suspect in custody for up to 24 hours – or 36 hours in some cases – before they must be charged or released – either on pre-charge bail or under investigation).
2. At this stage there is insufficient evidence to charge and pre-charge bail is used to manage the arrested individual during the investigation while evidence is obtained in relation to the offence. A person who is granted pre-charge bail is required to re-attend at a police station periodically and conditions will often be attached to them such as no contact with a victim or restrictions on entering certain areas. There are few restrictions on what conditions the police can impose and officers can therefore use their own discretion.
3. Once released on pre-charge bail, the custody clock stops and when they return to answer their bail, the clock continues. At that point, any further evidence may be put to them and they can then be charged, re-bailed, released under investigation or no further action taken against them.
4. Breach of pre-charge bail is not a criminal offence though it is arrestable. Officers can arrest for breach and then charge the subject with the original offence or release them with or without charge, either with or without bail. If released with bail, original conditions can be re-applied.
5. Pre-charge bail is to be distinguished from post-charge bail which is also issued by police but done so when there is sufficient evidence available to charge. It is also of course different from court bail which is issued by a bench or Judge after charge and appearance at court.
   

   
   2017 reforms to pre-charge bail

6. Pre-charge bail was subjected to legislative change through the Policing and Crime Act 2017 (PCA 2017). The changes were principally the result of concerns that suspects were spending extended periods of time on pre-charge bail, often for the case against them to not be taken forward.
7. Some restrictions were already in place before the PCA 2017 came into force for example the Bail Act 1976 specifies that no conditions should be imposed with pre-charge bail unless it appears to the officer that it is necessary to prevent a person from failing to surrender, commit further offences, interfere with witnesses or otherwise obstruct the course of justice. However, the PCA 2017 reforms have been more restrictive. The reforms include:
   a.  A presumption against the use of pre-charge bail unless necessity and proportionality criteria are met;
   b.  An initial pre-charge bail limit of up to 28 days.
   c.  Extensions of pre-charge bail have to be authorised by a superintendent (up to three months after the initial bail date) or by a Magistrates’ Court (if the extension request means the suspect will be on bail longer than 3 months after the initial bail date)
   d.  An officer of the rank of inspector above authorises the release on bail having considered any representations made by the person or their legal representative (s.50A(b) PACE)
8. If it is not necessary and proportionate to impose pre-charge bail but the officer still has grounds to suspect an individual of an offence then he should be released with no bail obligations (RUI) and the 2017 reforms resulted in an increasing number of individuals being RUI. It is not uncommon for a person to be released on pre-charge bail for the first 28 days after release, only to then have their status change to RUI thereafter. The distinction is that those on pre-charge bail will have conditions placed upon them whereas those who are RUI will not. Those who are RUI also have no time limits set for them to return to the police station. Suspects left on RUI for long periods of time can receive no or irregular updates on the progress of their case.
   

   
   Duration of pre-charge bail

9. Based on data provided by 12 police forces for the year ending March 2014, around eight in ten (79%) suspects were on pre-charge for up to three months, while an estimated 14% were on bail for between three and six months (Home Office, 2015). Only 1% – equivalent to an estimated 5,000 individuals nationally – were on bail for in excess of 12 months. Hucklesby (2015) found that the average time spent on bail was between six and seven weeks in both forces studied, in line with a College of Policing (2016) estimate based on nine forces.
10. Data therefore shows that it is not uncommon, even after the 2017 reforms, for a person to remain on pre-charge bail for longer than the initial 28 days.
    

    
    Procedure for challenging pre-charge bail or the conditions of pre-charge bail

11. A suspect’s legal representative has the right to make representations in respect of the imposition of pre-charge bail and an extension past 28 days. Under PACE 1984 the representations must be considered and factored into the decision-making process. Representations are likely to include that the threshold test has not been met.
12. Where bail conditions are attached, reasons must be given, and instructions should be taken on those conditions. Legal representatives should be aware however, that the decision as to the necessity of the conditions to meet one or more of the statutory purposes (secure attendance, prevent offending, witness interference, own protection) is not subject to the same scrutiny as Court bail. There is no statutory provision requiring the Custody Officer to consider representations; although if it is felt that one of the purposes is not made out, or that the conditions are disproportionate, representations should be advanced despite the Custody Officer being under no formal obligation to hear them.
13. Under the Bail Act 1976 and PACE 1984, either the Custody Officer who imposed the pre-charge bail conditions, or another Custody Officer working at the same police station may be contacted for variation in the first instance. There is no stipulated procedure by law, however most police forces require formal requests to me made in writing, with a time limit for acknowledgement, and a time limit for formal response. Suspects should be advised that the Custody Officer may impose additional – or more onerous – conditions. As such, representation is advisable.
14. An application to vary pre-charge bail conditions must be served upon the relevant police force in accordance with the procedure outlined above. If the application is rejected, or a response is not received, the application may proceed to a Magistrates’ Court where there is a duty to surrender, or to a Magistrates’ Court that is in the Custody Officer’s Local Justice Area. Under the Magistrates’ Court Act 1980 and PACE 1884 the Court may confirm the same conditions, impose different conditions, or direct that bail is unconditional.
15. Under Part 14 Criminal Procedure Rules the application to the Court must be made in writing, specifying the variation sought. The Court will list the matter and notify the CPS. The matter should be heard no later than the fifth business day after receipt.

Conclusions

16. This note is prepared for the purposes of looking at the duration of pre-charge bail and the legality of extending it. Whilst it is wholly undesirable for defendants to spend a significant period of time on pre-charge bail, there is unlikely to be anything a suspect can do to challenge the decision to impose pre-charge bail if the police have done the following:
    a.  Applied the necessity and proportionality test when deciding to impose pre-charge bail;
    b.  Ensured an officer of the rank of inspector or above to approve pre-charge bail (and ensure that inspector has heard representations from the suspect or their legal representative)
    c.  Initially imposed pre-charge bail for 28 days only;
    d.  Ensured any extension of up to 3 months approved by a superintendent;
    e.  Ensured any extension above 3 months approved by the Magistrates’ Court

17. If the steps above are not followed, or if a defendant wishes to challenge pre-charge bail, then they should seek representation and follow the steps identified in paragraphs 13-15.

This is an issue that advocates should be alive to when mitigating at sentence as a significant period spent on pre-charge bail is likely to have an adverse effect on defendants, particularly if there have been conditions which have restricted their liberty. In such situations, it would be remiss of an advocate not to draw the court’s attention to the fact that the defendant spent a period of time in ‘limbo’. Further, and perhaps more importantly, those who are on pre-charge bail may be able to instruct representation to challenge that decision or to challenge the conditions placed upon them, particularly when correct procedures have not been followed.