By Ruth Peters, 30th March 2023
In this article we consider time limits in relation to police bail as a result of the changes introduced by the Police, Crime, Sentencing and Courts Act 2022 (PCSC).
What is pre-charge bail?
Pre-charge bail is a tool whereby an individual who has been arrested and detained in police custody can then be released from custody to allow the police investigation to continue without the suspect being further detained. Suspects 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 mitigate the risk of further offences.
Individuals can also be released subject to pre-charge bail without conditions or can be released under investigation (RUI) where there are no conditions applied to them in relation to the investigation.
What is the difference between being released subject to pre-charge bail and being released under investigation?
The main difference in relation to being released under investigation is that there is not a specific date for a suspect to return to the police station as there is with pre-charge bail. As outlined above, conditions can also be attached to pre-charge bail, for example, conditions of non-contact with a complainant or not to go to a certain area/address. Conditions cannot be applied when an individual is released under investigation
When can someone be released on pre-charge bail?
When a custody officer is considering releasing a suspect under pre-charge bail they must be satisfied under section 50A of PACE that releasing a suspect on bail is necessary and proportionate in all the circumstances (having regard to any conditions of bail that would be imposed). The custody officer must consider any representations made by the suspect or their legal representative.
The custody officer should have regard to the need to securing their surrender to custody, prevention of further offences, safeguarding complainants and witnesses, safeguarding the suspect (where vulnerabilities have been identified) and managing risk to the public.
What bail conditions can be attached?
Conditions can be imposed to mitigate any risks that could remain by granting unconditional bail. The investigating officer should consider the necessity and proportionality of any proposed conditions to present to the custody officer who will make any decision in relation to police bail conditions.
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
- For the suspects own protection or if a child/young person for their own welfare.
The investigating officer has a duty to seek the views of the complainant where reasonably practicable to do so as to whether conditions should be imposed and if so what conditions are to be imposed. Once bail and conditions have been imposed the investigating officer should notify and explain the conditions to the complainant as well as explaining what they should do if the conditions are breached.
Typical conditions are to not contact a complainant, non-contact with under 18s, not to contact prosecution witness and not to go a certain address/area.
How long can I be released on pre-charge bail?
Initially a suspect can be released for a period of up to three months. The initial applicable bail period begins the day after a suspect is arrested for the relevant offence. This can be up to three months. However in cases involving the FCA, SFO, NCA or HMRC case 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 responsibility for authorising initial release on pre-charge bail is that of a custody officer.
It is for an investigating officer to provide a risk assessment and rationale to the custody officer to determine suitability to be released on pre-charge bail and whether it is proportionate/necessary. A custody officer will then authorise, decline or request further work as appropriate considering any representations made by the suspect or their legal representative as well as the views of the complainant.
How long can bail then be extended for?
The initial applicable bail period can be extended on the authority of an inspector to six months. They must ask the following questions;
- Is the applicable bail period still valid? If the applicable bail period has lapsed no extensions can be authorised.
- Have representations been sought from the suspect/legal representative?
- Have the views of the complainant been sought if reasonably practicable to do so?
- Are conditions A to D of section 47ZC of PACE met?
When can an Inspector authorise a bail extension?
In order to authorise an extension the Inspector must be satisfied they have reasonable grounds for
- Suspecting that the suspect is guilty of the offence.
- Believing that further time is needed for making a decision as to whether to charge the suspect with the offence or otherwise that further investigation is needed.
- Believing that the decision as to whether to charge the suspect with the offence is being diligently and expeditiously or otherwise that the investigation is being conducted diligently and expeditiously.
- Believing that the release on bail of the suspect is necessary and proportionate in all the circumstances.
Prior to the authorisation of each extension, the Inspector must arrange for the suspect or their legal representative to be informed and given time to submit representations. The Inspector must then consider any representations submitted.
It is considered good practice to seek the views of the complainant when considering an extension.
When can a second bail extension be authorised?
A second bail extension can be authorised by a Superintendent who may authorise a further extension from six to nine months. This can only occur when the applicable bail period has not ended and when the conditions described above are met. This extension must be authorised by a Superintendent and follows the same process as detailed above for an extension by an Inspector.
Exceptionally complex cases
Section 47 ZE of PACE provides for cases that have been designated by the Director of Public Prosecutions as exceptionally complex to be able to allow extensions from nine months to twelve months. This must be authorised by a qualifying police officer who must be the rank of Commander or Assistant Chief Constable or above. The same conditions must be met.
Before determining whether to authorise such an extension the qualifying police officer must arrange for the suspect/their legal representative to be informed and consult with the Director of Public Prosecutions. Any representations submitted by the suspect or their legal representative must be considered and they must be informed when an authorisation has been made.
Extensions to the Magistrates’ Court
When either the nine month extension by the Superintendent or the extension in exceptionally complex cases as described above is about to expire and the police consider they require additional bail time, they can apply to the Magistrates Court for an extension. This should be at least one week prior to the expiry of the explicable bail period.
How long can the Magistrates’ Court extend bail for?
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.
Does this mean that investigations do not need to be conducted quickly ?
Notwithstanding all of the above in terms of extensions, investigations still need to be conducted diligently and expeditiously irrespective of the time available as part of any remaining applicable bail period. Regular progress against an investigation needs to be shown and an investigation should not drift. If there are actions to be taken to finalise a case and obtain a charging decision these actions should be taken as soon as reasonably practicable and not left until the end of the bail period.
This is specifically referred to within the pre-charge bail statutory guidance as a diligent and expeditious investigation will ensure a better service for victims and witnesses, better management and welfare of the suspect and improved evidence gathering and case file preparation. The guidance specifically states that it also enhances the likelihood of justice being served.
How can we help?
At Olliers, we have considerable experience in dealing with pre-charge matters. If you would like to discuss how we can proactively assist you in relation to your case at a pre-charge stage, 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.