Changes to police pre-charge bail regime

Since April 2017, suspects released without charge during a police investigation have been either remanded on police bail – which may or may not have conditions attached – or released under investigation (RUI). RUI suspects are not subject to any conditions and there are no time limits set for them to return to the police station. The timespan for a criminal investigation is also unlimited. Consequently, with delays in investigations because of the time taken to analyse phone and computer data – typically 6-24 months – many RUI suspects have remained in limbo for months, even years between their initial arrest and a final charging decision. By 2018 the Law Society estimated that 177,000 suspects had been released under investigation.

Concerns that the RUI system was being deployed inappropriately and overused, often resulting in the unconditional release of suspects in violent and sexual offences when conditions of police bail should have been imposed, have now led the government to reform the pre-charge bail rules. Following a public consultation, the results of which were published in January 2021, the Police, Crime Sentencing and Courts Act 2022 (PCSCA 2022) took effect on 28 October. It amends the pre-charge bail provisions in the Police and Criminal Evidence Act 1984 (PACE 1984).

These new measures are aimed at reversing the dramatic fall in the use of pre-charge police bail and the exponential growth of RUI cases since the last pre-charge bail reforms in the Policing and Crime Act 2017 (PCA 2017). This has led to what the government labels as a ‘perceived presumption against pre-charge bail’. By encouraging the police to release suspects on pre-charge bail rather than under the RUI system, the government hopes to achieve better monitoring of suspects and improve case management discipline. 

Presumption in favour of pre-charge bail

When considering the release of a person arrested at a police station, the default position now assumes a presumption in favour of pre-charge bail as opposed to the now discarded presumption against bail introduced by the PCA 2017. This is achieved by amendments to the wording of key provisions of PACE 1984 in favour of releasing a suspect on pre-charge bail. For example, the words ‘on bail’ (removed by the PCA 2017) have been inserted into section 30A of PACE 1984. It now reads ‘a constable may release on bail a person who is arrested or taken into custody’. Sections 34, 37, 41, 42, 43 and 44 of PACE 1984 have also been amended.

New risk-based approach to bail decisions and duty to notify victims

Bail decisions are to be taken on a case-by-case basis with reference to a specific list of risk factors defined in section 38(1B) of PACE 1984. These factors include the need to safeguard victims of crimes and witnesses, as well as the need to safeguard the ‘alleged victims’ of crime, a category defined at section 30CA(6) of PACE 1984.

To ensure that victims are involved in the pre-charge bail decision-making process the police are required to inform and seek the views of victims regarding any proposed pre-charge bail conditions or variations thereof (changes to section 30 of PACE 1984). How these provisions will work at a police station and the weight custody officers will attach to representations from a witness, victim or alleged victim remains to be seen.

Lower-ranking officers can authorise pre-charge bail  

Under the PCA 2017, pre-charge bail decisions could be authorised by a police officer of the rank of inspector or above. The new act enables custody officers (section 30A of PACE 1984) or any officer acting as a custody officer including a police constable (section of 36(7C) of PACE 1984) to authorise the first period of pre-charge bail up to a period of three months in standard investigations.

Reduced scope for judicial oversight

Changes to the timelines at which pre-charge bail decisions are made in standard non-complex cases mean that the initial pre-charge bail period can now be authorised by a custody officer to three months, with extensions at six months by an inspector and nine months by a superintendent (amendments to section 47 of PACE 1984). Beyond nine months a further bail extension can only be granted in a magistrates’ court. This contrasts with the PCA 2017 system, where extensions to the initial bail period had to be made to a magistrates’ court after three months.

Conclusion

When the PCA 2017 was introduced, it was seen as an initiative that would encourage the police to act with greater transparency and speed up the criminal investigation process. Since then, as they struggle to cope with increasing workloads, chronic understaffing and underinvestment, police forces across the country decided as a matter of routine to opt out of the pre-charge bail regime entirely whenever they could by releasing suspects under investigation without conditions and with no time fixed for their return. The PCSCA 2022 seeks to reverse that trend. The Law Society has expressed concern that these changes will continue to allow people accused of a crime to be kept on bail by the police for long periods. Whether the act will reduce the delays endemic in police investigations without government action to address the underlying causes of the funding crisis within the criminal justice system must be questionable.

Roger Sahota is a partner at Berkeley Square Solicitors, London