Pre-charge bail changes – Government consultation response

Written 27th September 2021 by Matthew Claughton

Introduction

Since 2017 there has been a presumption against individuals under investigation being subject to ‘pre charge bail’.  There have been clear statutory timescales for imposing and extending pre charge bail. Conditions should only be attached to pre charge bail if they are ‘necessary and proportionate’. 

Government Consultation February 2021

The government brought out a consultation earlier this year which intended to review the process and consider whether further change was needed to ensure that pre charge bail was being used appropriately and whether it was supporting the time link progression of criminal investigations.

Interestingly 64% of the responses came from the police.  The majority of responses supported longer bail timeframes and the removal of the presumption against bail.

The government proposes to end the presumption against pre charge bail. However, the custody office will be required to have regard to various factors when deciding whether bail conditions are ‘necessary and proportionate’. These are set out below;

  • Severity of actual, potential or intended impact of offence;
  • Need to safeguard victims and witnesses, taking into account vulnerability;
  • Need to prevent further offending;
  • Need to manage risk of absconding; and
  • The need to manage risks to the public 

 The government’s view is that the position is now a neutral one. 

Length of bail conditions

Currently we have a 28 day limit to bail which is extendable to 3 months and beyond by senior officers. This limit can be extended further beyond the 3 month mark by the court. There is a set criteria for extending bail beyond the 28 day limit;

  • Bail period granted on the authority of a police officer ranked Superintendent or above;
  • Granted until the end of 3 months from the original 28 day bail start date
  • The case is designated as a complex case

The feedback from the consultation suggested that the timeframes were a disincentive for the use of bail, especially in complex cases. 

Various models were considered and the government proposes the following:-

  • An extension of initial bail by the custody office to 3 months;
  • An extension of bail to 6 months can be granted by an officer of the rank of Inspector;
  • A Superintendent can extend bail to 9 months;
  • After the 9 months point, extensions can then be made by the Magistrates Court.

Released under investigation cases and voluntary attendances

There is no statutory framework for non-bail investigation cases, where a suspect is ‘released under investigation’.  

The government’s expectation is that the use of ‘released under investigation’ will decline. The government states that it is actively working with the sector to limit the use of released under investigation cases.  Interestingly the government has suggested that if individuals don’t meet the criteria of bail with or without conditions, then it is likely that NFA (no further action) is the most appropriate course of action. 

Breach of bail conditions 

The government recognises support for strengthening the consequences of breach of pre charge bail conditions. However the government is not currently looking to introduce an offence for breach of bail conditions. 

Conclusion

We appear to be moving back to the situation pre 2017 where suspects remained on bail for extended periods. Since 2017 many suspects have been ‘released under investigation for equally as long if not longer periods of time.

Perhaps the real problem is the excessive length of investigations regardless of whether a suspect is on bail or ‘released under investigation’. 

There is no doubt that being placed ‘on bail’ is more onerous for a suspect, especially if conditions are imposed that have a real impact on their daily lives. However, there is arguably at least some advantage to being placed on bail because the progress of an investigation has a degree of monitoring, even if initially it is by more senior officers. The danger with suspects being ‘released under investigation’ is that they may forget about their case or bury their heads in the sand. There is a real risk of suspects sleepwalking into a charge following a period of months and even years ‘released under investigation’. This is far less likely if they are on bail. They are more likely to seek representation pre-charge. There may be scope for effective pre-charge engagement with with a view to representations against charge being made in appropriate cases

Matthew Claugton

Managing Director

Manchester

Head Office

London

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