Ruth Peters, Director at Olliers, considers when it may be possible to apply to vary police bail conditions
What is police pre-charge bail?
Pre-charge bail (also known as police bail) is a tool where an individual who has been arrested and detained at a police station can then be released from custody to allow the police investigation to continue following an interview under caution. Those under investigation are often released subject to conditional police bail which allows police officers to attach conditions to the bail, for example, to protect witnesses and/or reduce the risk of further offences.
Individuals can also be released subject to police charge bail without conditions or can be released under investigation (RUI) where there are no conditions applied to them in relation to the investigation.
When can police bail conditions be imposed?
Police bail conditions may only be imposed where it is necessary:
- to prevent a suspect from failing to surrender to custody;
- to prevent a suspect from committing an offence while on bail;
- to prevent a suspect from interfering with witnesses or otherwise obstructing the course of justice; or
- for the suspect’s own protection or, if a child/young person, for their own welfare.
What sort of bail conditions can be imposed?
There is no set list of police bail conditions but they often include the following:
- Reporting – Having to report to the police station at specified times on certain days of the week
- Forfeiting your passport to prevent foreign travel
- Having a curfew – this would NOT be electronically monitored when imposed as part of police bail
- Non-contact – Being unable to contact certain people (often the alleged victim) or others arrested with you
- Residence – Being made to live and sleep at a specific address
- Being unable to go to a specific location (e.g. an alleged victim’s place of work or home address)
- Attending a certain appointment
The bail conditions that the police impose will vary on a case-by-case basis. As an example, in domestic allegations the police will frequently impose conditions of non-contact prohibiting an individual from making contact with the alleged victim or from returning to the matrimonial home which can impact upon child contact.
How long can I be released on pre-charge bail?
Initially you can be released for a period of up to three months. However, in cases involving the FCA, SFO, NCA or HMRC, the applicable bail period is different and a custody officer can authorise for up to six months instead of three as in standard cases. The initial applicable bail period can be extended on the authority of an inspector to six months. A second bail extension can then be authorised by a Superintendent who may authorise a further extension from six to nine months. When the nine-month extension by the Superintendent is about to expire and the police consider they require additional bail time, they can apply to the Magistrates Court for an extension. The Magistrates Court have the flexibility to grant exceptions up to 12, 18 or 24 months (for exceptionally complex cases only) depending on the circumstances of the case.
Click here to read more about time limits in relation to police bail.
Is it possible to vary police bail conditions?
Yes. Often an individual may be released from the police station with bail conditions that may be disproportionate or do not allow an individual’s family solicitor to contact the alleged victim in relation to family proceedings. Often an individual may need assistance attending their home address to collect belongings when they are prohibited from returning to such address.
Whilst the responsibility for bail and bail conditions is that of the Custody Sergeant, in reality they will be guided by the views of the investigating officer. In the first instance therefore it is appropriate for defence solicitors to canvass any suggested variation to bail conditions with the investigating officer, explaining why the current conditions are disproportionate or the suggested variation is important.
In many cases we can successfully liaise with the police and negotiate variations to bail conditions.
A good example of this is where a defendant is ‘prevented from contact, directly, or indirectly with the alleged victim.’ This condition could cause a defendant to be in breach of his bail conditions if his family solicitor were to contact the alleged victim in relation to access of the joint children. It is our experience that different police officers hold different interpretations of this condition. In cases where there are no concerns in relation to an individual seeing his children, this could be considered a breach of the their human rights and would prevent them from making an application to the family courts. Whilst some police officers may not view the above as a breach of bail conditions, some may interpret it as a breach and therefore it is preferable for the same to be amended to be absolutely clear.
Ideally the condition would be amended to add ‘save for via a solicitor who is instructed to address both financial and children issues arising as a result of the parties’ separation and who may contact ‘the alleged victim’ in relation to such matters.
If the police will not vary police bail conditions is it possible to challenge them at court?
Yes. If the police are not prepared to vary police bail conditions, then we can apply to the Magistrates’ Court to vary them. The Magistrates will consider the case and arguments put forward in relation to the bail conditions by both the prosecution and the defence. The court can then either confirm the same conditions, impose different conditions, or direct that bail shall be unconditional.
Where a defendant applies to the Magistrates’ Court to vary conditions of bail imposed by the Police, the court will fix a hearing date and notify the Crown Prosecution Service. Courts should hear the application no later than the fifth business day after receiving the application.
In some cases, lodging of an application to the Magistrates’ Court can prompt the police to consider in more detail suggested variations to the current bail conditions and encourage negotiation prior to any court hearing.
What happens if you breach police imposed bail conditions at the pre-charge stage?
When the police have reasonable grounds for believing that pre-charge bail conditions have been breached, they have a power of arrest. Accordingly, they can arrest an individual and take them to the police station. There is no provision for an alleged breach of pre-charge bail to be put before the court and it is not in itself a criminal offence.
However, once in custody a decision will need to be made as to whether that suspect can be charged with the original offence for which they were bailed. If authorisation to charge has been provided the arrested person can be charged accordingly.
If authorisation has not been given this can be sought whilst the suspect is in custody at the police station. The Police, Crime, Sentencing and Courts Act 2022 introduced a new section that adds three hours to the PACE custody clock when an individual is arrested on suspicion of breach of police bail to enable investigators more time to complete any outstanding lines of enquiry and seek a charging decision.
If a charge is not authorised, then the suspect can be released without charge, either on bail or without bail. If an individual is released on bail, then they would be subject to whatever conditions applied immediately prior to their arrest for a breach of bail. There is no power to vary the conditions of bail that previously applied. If the individual is charged, then it is likely that they would be kept in custody to appear at the Magistrates’ Court the next day given the breach of police bail which may suggest that a suspect will not adhere to bail until their Magistrates’ Court appearance.
How can Olliers help?
At Olliers we have considerable experience in representing individuals released subject to police bail. If you would like to discuss how Olliers can proactively assist you in relation to your case at a pre-charge stage or have concerns in relation to your bail conditions please contact us by telephone on 0161 834 1515, by email to firstname.lastname@example.org or complete the form below and we will contact you.