Pre-Charge Bail – Reform has arrived, but is it enough?

Since its introduction in its present form in the Police and Criminal Evidence Act 1984, pre-charge bail (or police bail) has been a valuable tool for the police during the preliminary stages of a criminal investigation.  However, following previous abuses of the power, long-overdue changes to the law are now in force and will make it more difficult for the police to use bail in lengthy investigations.

Pre-charge bail allows suspects to be released from custody pending further enquiries, with an obligation to return on a future date to be re-interviewed or charged, with the power of arrest if he or she fails to surrender. Since the Criminal Justice Act 2003, conditions can be applied, for example, to prevent the suspect from leaving the jurisdiction (by requiring the surrender of passports) or prohibit contact with witnesses.

However, the limited judicial oversight and lack of a statutory time limit also allows police bail to disproportionately restrict the rights of those who find themselves involved in criminal investigations.

At its most egregious, it has been alleged that pre-charge bail conditions have been used to prevent legitimate protest. Less alarming, but far more common, are the instances of suspects being kept in a legal limbo for an indefinite period, with limited means to improve their position; sometimes suffering irreparable reputational damage.

It is not uncommon for suspects to be kept on police bail for a year or more. A 2014 BBC investigation discovered that at least 5,000 people in England, Wales and Northern Ireland had been on bail for more than six months. The 2015 Home Office consultation on pre-charge bail identified a 13 year old boy being kept on pre-charge bail for over 300 days, during which he was re-bailed six times.

If conditions are applied to bail, the situation becomes all the more difficult. Whilst surrendering your passport, avoiding a particular location or reporting regularly to a police station might be considered an inconvenience in the short term, after several months it will have a substantial impact on day-to-day life. It must not be forgotten that such persons are only suspected of, not charged with, a criminal offence.

If the officer-in-charge and custody sergeant involved refuse to remove or vary pre-charge bail conditions, they can be challenged before a magistrates’ court, at your own expense. However, if the police argue that the investigation is being hampered by forces outside of their control (more on which later), then the court may have little choice but to maintain the conditions. Even if the conditions are varied, the court is unlikely to discharge you from bail entirely and this may still have a significant impact on your life, business and reputation.

The path to reform

The issue of prolonged pre-charge bail came to particular public attention when it emerged that those under investigation in Operations Weeting and Elveden (investigations into phone hacking and bribery of public officials) and Operation Yewtree (investigation into historical sexual abuse) had been kept on pre-charge bail for months and often years, the vast majority being released without charge. In the case of Operation Yewtree, it was suggested that the celebrities involved were arrested and kept on bail in the hope of keeping the story in the public eye and encouraging victims to come forward.

In response, the Home Office carried out a 2015 Consultation, following which Theresa May (at the time merely Home Secretary) announced a package of reforms which would limit the amount of time a suspect could be kept on police bail without approval of a senior police officer and eventually a magistrates’ court.

The new law

The proposed reforms were incorporated into the Policing and Crime Act 2017, which received Royal Assent on 31 January 2017, although will not actually come into force until next Monday, 3 April 2017.

Before considering time limits, there is now a presumption that a suspect will be released without bail unless the custody officer considers bail ‘necessary and proportionate’, taking into account any conditions which would be imposed.

In most cases, a person may only initially be kept on bail for 28 days before a superintendent or senior approves an extension to a total of three months. After three months, an application must be made to the magistrates’ court, which may only extend the period by three months, unless it is satisfied that the case cannot be progressed in such time, in which case it may extend the period by six months. In both situations, the application must be made (although not necessarily heard) before the existing bail period expires.

The provisions are slightly altered for SFO and FCA investigations (which are granted an initial period of three months without review) and cases designated as ‘exceptionally complex’ (in which case a Commander or Assistant Chief Constable can authorise an initial period of up to six months without reference to the court). At the time of writing, no guidance on the meaning of ‘exceptionally complex’ has been made available.

There is also an additional complicating factor, in that investigators may apply for ‘sensitive’ information to be withheld from the suspect and his legal team, on the grounds that its release would result in evidence being interfered with, a person (e.g. a witness) interfered with or harmed, the alerting of a suspect not yet arrested or the hindrance of the recovery of property.

Whilst the investigative benefits of these limitations is obvious, they clearly also have the potential to tie one hand behind a suspect’s back in challenging the ongoing delay. Magistrates therefore carry a heavy responsibility to ensure that this restriction is not abused as cover for failing to properly advance an investigation.

Ultimately, no person should be kept on bail for more than six months without the approval of a magistrates’ court, which may only extend the period by three months at a time, unless it is satisfied that the investigation warrants the maximum extension of six months.

At each extension stage, the decision maker must be satisfied that:

1. The investigation or decision to charge is being conducted ‘diligently and expeditiously’; and
2. There are reasonable grounds for believing that further time is needed for a decision on charge or investigation is needed.
3. That further bail is necessary and proportionate, taking into account any conditions to be imposed.

The system does not prohibit indefinite bail, nor does it apply to a case which is with the CPS for consideration (during which time the clock is stopped, to be resumed if returned for further investigation). Nonetheless, it should act as a significant deterrent to repeatedly re-bailing until such time as is convenient to charge or release. If nothing else, investigators will be obliged to consolidate their work at each stage and make a realistic assessment of the progress which has been made, and explain why further delay is justified.

Is the law the only problem?

Throughout the consultation and drafting stage, many commented that the police are often dependent on outside agencies (forensic computer examiners and other experts, for example) in order to progress investigations.   Whilst one has sympathy with this position, ultimately the police must take responsibility for those they release under the restrictions of bail. Until there are real consequences for the failure to expeditiously progress investigations and make decisions, there is little motivation for those further down the chain to cooperate in a timely manner. If other agencies and experts were penalised where their failings led to bail being prolonged unnecessarily, it would inevitably lead to a shake-up of attitudes.

The age of austerity has now been with us so long that it seems trite to point out that ongoing cuts to public services will inevitably have real and everyday consequences, one of which is the day-to-day impact of limitless pre-charge bail. The police and other agencies must therefore be supported in the inevitable call for the more onerous procedures to be matched by a sufficient increase in resourcing.

Ultimately, delays in police investigations have always been a cause for complaint. Very often, there is no need at all for bail to be imposed and suspects can be trusted to re-appear when required as the investigation progresses. The cynical view is that there will never be enough money to prevent bureaucracy or poor decision making. If the police are to exercise the power of pre-charge bail, they must accept the need to use it proportionately and recognise when its intended purpose is being exceeded.

Although the Policing and Crime Act 2017 is undoubtedly a step forward, it will only address the problem if attitudes and resources progress alongside the law. Investigators must regard the new time limits as an achievable target, rather than another obstacle making a difficult job impossible. Furthermore, they must be provided with sufficient resources to meet the expectation. It would be the worst of both worlds if time spent dealing with the new provisions for extending bail became another significant source of delay in criminal investigations.

Read Nick Barnard’s previous analysis on pre-charge bail here.