Written 3rd April 2017 by Ruth Peters

The Policing and Crime Act received Royal Assent in January 2017 and came into force today – 3rd April 2017. Among other things, it legislates for time limits on the amount of time suspects spend on pre-charge police bail.

What is Pre-Charge Bail?

Pre-charge police bail allows for suspects to be released without charge pending further enquires and gives police the power of arrest over those who fail to re-attend for charge or re-interview. It is a valuable tool for police in the early stages of an investigation and the majority of suspects arrested by police are subsequently bailed in order for the police to secure enough evidence for charge; or alternatively for police to decide there is insufficient evidence to take any further action.

Prior to the implementation of The Policing and Crime Act there was no limit on the amount of time suspects could spend on bail. This can cause stress, anxiety and uncertainty in the minds and lives of suspects and can also damage their reputation and livelihood. Suspect’s lives can become particularly disrupted and inconvenienced with the imposition of bail conditions which the police have had the power to impose since the implementation of the Criminal Justice Act in 2003.

What is important to remember is that those who are suspected of crime are suspects and not charged or convicted of any offence, they are merely under suspicion, and these people do not deserve to be treated as though they are already being punished. It is clear that the lack of judicial oversight and statutory time limits on police bail can leave the system open to abuse and that an overhaul is long overdue. The Policing and Crime Act seeks to do this by attempting to limit the amount of time suspects spend on bail by subjecting extension of bail to independent judicial scrutiny.

Firstly the Policing and Crime Act 2017 legislates for a presumption of release without bail to all those arrested unless bail is deemed necessary and proportionate and this must be authorised by a police officer ranked inspector or above.

New Time Limits on Police Bail

If it is deemed ‘necessary and proportionate’ for a suspect to be placed on bail the Act allows for an initial 28 day period of bail, which can be extended for three months with the approval of a superintendent. Any further extension of bail must be approved by a Magistrates court. Cases deemed to be ‘exceptionally complex’ can be extended up to 6 months by the Serious Fraud Office, the central casework units of the Crown Prosecution Service and the Financial Conduct Authority without the approval of a court.

At the magistrates court written submissions will be made by the police to justify any extension and suspects and their lawyers will be permitted to do the same in order to argue against extension. There will be no oral hearing unless police seek to extend bail beyond 12 months. At each stage the decision maker, be it a magistrate or police superintendent, must be satisfied that any investigation is being carried out ‘diligently and expeditiously,’ that further time is needed to gather the evidence needed to make a charging decision and that bail continues to be necessary and proportionate. If they are not satisfied then they cannot authorise an extension.

This legislation should serve to make it more difficult for police to keep people on bail for unnecessarily lengthy periods of time but there is a strong argument to say that these powers don’t go far enough and that the new provisions do not solve the problem of people being put under high levels of stress and anxiety for protracted periods of time.

What constitutes an ‘Exceptionally Complex’ Case?

For a start the term ‘exceptionally complex’ is not defined by the act; presumably this means that it will be down to the investigator to decide if a case is exceptionally complex. This is a problem in itself and could see many more suspects than originally intended being on bail for 6 months before a Magistrates court gets involved or the suspect is released from bail.

Additionally those released without bail following their arrest may still be under investigation, and people who are released from bail after 28 days or 3 months may still be under investigation. Granted, not being on bail removes the inconvenience of conditions but people are still faced with the uncertainty, anxiety and stress caused by being under investigation. To add to this they do not have a set date to return to the police station meaning no clear end date is in sight.

Another related problem is that with police already being stretched in terms of resources the additional time pressure introduced by the Policing and Crime Act could lead to police prioritising the cases for which clients are on bail and leaving cases on the back burner for those who are not, this could lead to even longer delays in decisions being made.

Finally, we do not yet know how the Magistrates Courts will use their new powers and what proportion of suspects before the courts will have their bail revoked because the police couldn’t satisfy the criteria mentioned above.

Do the New Police Bail Provisions go Far Enough?

The answer is that it remains to be seen. It will depend on how the police behave and how they interpret the new rules. It also depends on how the courts exercise their powers. We will be in a much better position to assess the effectiveness of the legislation in protecting suspects this time next year.

Olliers Solicitors – Specialist Criminal Defence

If you require further advice in relation to a police bail matter or you are currently on police bail please contact our highly experienced criminal defence lawyers by telephoning 0161 83411515 and ask to speak to Helen Buxton or Alex Close-Claughton.