Changes to Pre-Charge Bail to come into effect soon

When Are Changes to the Pre-Charge Bail System Due to Come in and What are the implications?

Changes to pre-charge bail arrangements and the current system of “release under investigation” are expected to come into force in late October 2022 when schedule 4 of the Police, Crime, Sentencing And Courts Act 2022 is commenced.

The current system

An individual who has been arrested by the police but who has not yet been charged can be released on pre-charge bail or released without bail while the investigation continues. Pre-charge bail means the individual under investigation is released from police custody, with or without conditions, while officers continue their investigation. Individuals on pre-charge bail are required to return to the police station at a specified date and time, known as “answering bail”, to either be informed of a final decision on their case or to be given an update on the progress of the investigation.

Conditions may be imposed upon the individual if they are deemed necessary to: prevent someone from failing to surrender to custody; prevent further offending; or prevent someone from interfering with witnesses or otherwise obstructing the course of justice. Conditions may also be imposed for the individuals’ own protection or, if aged under 18, for their own welfare and interests.

he then Government legislated through the Policing and Crime Act 2017 to address concerns that individuals were being kept on pre-charge bail for long periods, sometimes with strict conditions. The reforms introduced:

• a “presumption” against pre-charge bail unless necessary and proportionate in all circumstances to release on bail; and
• clear statutory timescales and processes for the initial imposition and extension of bail, including the introduction of judicial oversight for the extension of pre-charge bail beyond three months.

After the reforms came into force in April 2017, the use of pre-charge bail fell, mirrored by an increasing number of individuals released without bail, commonly known as “released under investigation” (“RUI”). This change has raised concerns that bail was not always being used when appropriate, including to prevent individuals from committing an offence whilst on bail or interfering with witnesses. Other concerns focus on the potential for longer investigations in cases where bail is not used and the adverse impacts on the courts.

Public Consultation

The Government held a public consultation which ran from 5 February to 29 May 2020 which sought views on proposed reforms that would remove the general presumption against bail and instead introduce a risk-based approach to the use of bail. In addition, the consultation sought views on proposals to amend the statutory framework governing pre-charge bail timescales and authorisations designed to remove disincentives against the use of pre-charge bail whilst supporting the timely progression of investigations.

The consultation received 844 responses, with 80% of respondents agreeing with the proposal to remove the presumption against pre-charge bail and 88% strongly agreeing that bail conditions needed to be made more effective to prevent interference with victims and witnesses. The Government’s response to the consultation was published on 14 January 2021. Section 45 and Schedule 4 of the 2022 aCT give effect to these proposals.

The new arrangements

Part 1 of Schedule 4 aims to remove the perceived presumption against bail introduced by the Policing and Crime Act 2017 and amends that construction where it appears across a range of circumstances involving the imposition of pre -charge bail. Paragraph 2 of Schedule 4 amends section 30A of PACE which confers on a constable power to release on bail a person who is arrested elsewhere than at a police station, also known as ‘street bail’. The effect of section 30A(1) currently in force is to provide for a presumption that, where a constable decides that it is appropriate to release an arrested person rather than take them to a police station, that release will be without bail, unless the requirements in section 30A(1A) are met.

Those requirements are that the constable is satisfied that the release on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any bail conditions that would be imposed) and bail is authorised by a police officer of the rank of inspector or above). Paragraph 2 amends section 30A to remove the presumption against pre-charge bail.

This is replaced by a neutral position, with no presumption for or against pre-charge bail.

The Aim of the Change

The aim of this change, as well as the equivalent changes to Part IV of PACE, is to remove the suggestion that the default position is to release a person before charge without bail and to encourage the use of pre-charge bail, where it is necessary and proportionate in all the circumstances.

This aims to ensure that protection is afforded to victims and witnesses by the safeguards associated with pre-charge bail, particularly bail with conditions.

These provisions mean that standard cases, with a new initial bail period of three months, can be subject to two further extensions (the first extension being from three months to six months from the bail start date and the second extension being from six months to nine months from the bail start date) by the police before coming before a magistrates’ court.

Standard Cases

Standard cases which are designated as exceptionally complex (which necessarily will have already been subject to the second extension above), or non-standard cases can be extended to up to 12 months from the bail start date before coming before a magistrates’ court.

Part 6 of Schedule 4 inserts new section 50B into PACE. New section 50B(1) creates a new power for the College of Policing to issue statutory guidance on pre-charge bail granted to a person under Part 3 or Part 4 of PACE. Statutory guidance is being developed to underpin the pre-charge bail regime and ensure greater consistency across forces in how the regime is applied.

The guidance will cover but is not be limited to the exercise of powers to release a person on pre-charge bail; the exercise of powers to impose or vary conditions of pre-charge bail; the exercise of powers to arrest a person- for failing to answer pre-charge bail, or for breaching any conditions of pre-charge bail; the exercise of powers to extend the period of pre-charge bail; and the duty to seek the views of alleged victims about conditions of pre-charge bail.

We are awaiting the final guidance but can assure all of our clients that our entire team is monitoring these developments closely, and we will be ready to deal with the changes from the moment they come into force.

How We Can Help

If you have any questions in relation to these changes or anything with regards to pre-charge bail, please don’t hesitate to contact us on 0161 477 1121 or email us.