Pre-charge bail – law and practice at odds?

When a review of a particular legal procedure is announced, it can often be said that it is not the law that is in issue, but rather its implementation. Pre-charge bail is a case in point on this occasion.

On 5 November 2019, Home Secretary Priti Patel announced that she intends to instigate a review of pre-charge bail legislation ‘to ensure we have a system which more effectively prioritises the safety of victims and witnesses and the management of suspects’. The legislation referred to was the relatively recently enacted Policing and Crime Act 2017 (“The Act”).  The intention of the Act was to impose safeguards to prevent the unnecessary infringement of liberties of those under criminal investigation rather than to prioritise the safety of victims and witnesses. In the wake of criticism as to the length of time suspects remained on police bail (sometimes spanning many months or even years), often subject to conditions, the Act was introduced in an attempt to limit this unsatisfactory situation. The Act imposed important safeguards such as time restraints on the length of police bail and introduced a presumption that suspects were to be released under investigation (“RUI”) unless a custody sergeant decided that bail was ‘necessary and proportionate’.

The Act provides that a suspect can be placed on police bail for a maximum of 28 days. Thereafter, only an inspector can authorise an extension of up to three-months. After this period has expired, the police must apply to the Magistrates’ Court for a further extension, hence providing senior officer and judicial oversight.

The result was that the number of suspects subject to pre-charge bail fell drastically – a 75% decrease in the use of police bail within the first six months of the Act coming into force. But does this reflect a problem with the law, or is it the result of an under resourced police force opting to RUI suspects rather than having to complete investigations more expeditiously so as to meet the pre-charge bail time limit criteria?

The current test for release on bail, with or without conditions, is whether its imposition is ‘necessary and proportionate’. The time periods for review are not onerous. It seems unlikely that the announced Home Office review will conclude that bail should be imposed where it is ‘unnecessary or disproportionate’, or that investigations should be allowed to drag on for months without senior officer and judicial oversight and scrutiny.

In its current operation, the primary issues are two-fold: i) the public perception is that victims and witnesses are less well protected as no conditions can be attached to suspects released under investigation; and ii) the RUI period is lasting a number of months, or even years, with little, if any, oversight on the police to investigate expeditiously or provide updates on the progress of the investigation.

The first issue is clearly an important one for consideration. However, it should not be used to justify reverting to pre-2017 practices where suspects remain subject to onerous bail conditions whilst investigations drag on. Individuals can be subject to bail conditions but the consequence is that police investigations have to be completed within the time limits set by the Act.

The impact of the second issue is often understated and little consideration seems to be given to the considerable stresses and strains experienced by those who are under investigation for lengthy periods of time. Attempts have previously been made to address this. The National Police Chief’s Council (“NPCC”) issued guidance in 2019 in which it was recommended that suspects should be updated every 30 days regarding the status of the investigation. This guidance does not appear to have filtered through to all police forces as many who are RUI remain in the dark for many months as to what is happening in the investigation. It is pleasing to see Ms Patel in her announcement refer to the rights of suspects to timely decisions and updates.

The challenge for Ms Patel’s proposed review is that the black letter of the law can only do so much. In reality, it is the everyday decisions taken by custody sergeants and investigating officers which are important on victims, witnesses and suspects. As soon as those decisions are tempered by a lack of police resources to progress an investigation in a timely fashion, justice becomes the victim; not only for victims and witnesses but also for those under suspicion who may ultimately face no charges. So whilst a review is welcomed, its remit should focus on ensuring a balance is struck between the rights and interests of victims, witnesses and suspects. A review should rightly consider whether the police have the appropriate resources to ensure they are able to devote the necessary attention to all matters under investigation (whether the suspect is RUI or on bail) to ensure the timely progression of investigations, to the benefit of both victims and suspects alike.