Since PACE (Police and Criminal Evidence Act) was introduced in 1984, never have the police had to deal with a profound change in law as big as the changes now surrounding the grant of police bail.
Previously the police have been able to keep a suspect on bail for as long as necessary and for the duration of an investigation. There have been no time limits or any regulation of the length. This has been subject to significant criticisms and an increase in high profile cases in the media have highlighted the issue which has contributed to the reasons for the current reform.
If a suspect is charged with a crime they will be given a ‘charge sheet’. This sets out the details of the crime they are being charged with.
The law has not changed at all in this regard, the police will decide if a suspect:
1. can go home until the court hearing – but may have to follow certain conditions (this is known as being granted ‘court bail’)
2. are kept in police custody until taken to court for their hearing i.e. being refused bail.
The new provisions provide for circumstances where ‘police bail’ also known as ‘pre-charge bail’, ‘Part IV bail’ or ‘47/3 Bail’ is granted when an investigation is ongoing. The decision to place a suspect on police bail is usually made where there is insufficient evidence to charge due to further enquires that are outstanding or the police are seeking legal advice from the Crown Prosecution Service (CPS).
In the last few years, the police had changed their bail policy in most areas of the country to limit the length of the police bail being granted in the first instance to 28 days. This was not prescribed by law but simply adopted. This has not always been the case and some suspects have been subject to bail; including stringent bail conditions for over 12 months and in exceptional cases, far more than that.
The move to limit the length of bail to 28 days saw a lot of suspects released from their bail after the first or second bail dates and the Courts have seen a vast increase of charges being brought to court by way of a postal requisition.
A postal requisition is essentially a letter charging a suspect by post and requiring them to attend court. This used to be dealt with by way of a court summons. Because of this procedure, the police have given more thought as to whether an arrest is necessary and in recent years, there has been a significant increase in the police interviewing suspects voluntarily. A voluntary interview negates the need for an arrest and bail can only ever be given to a suspect who has been arrested. This has also contributed to the vast increase in the use of postal requisitions as anyone who is voluntarily interviewed and subsequently charged by post will have been brought to court in this way.
New Legislation & Changes
On Monday 3rd April 2017 The Policing and Crime Act made it a legal requirement for the police to limit the pre-charge bail period to 28 days. In order to extend this period (up to a maximum of 3 months) the police will be required to satisfy various requirements and the ultimate decision will be made by a high-ranking officer of Superintendent.
If a further extension is required to extend beyond a period of three months, judicial intervention will be required where the Magistrates Court retain the consideration of whether bail is necessary and proportionate and ultimately consider the following:-
· Whether there are reasonable grounds for believing that further time is needed for the police to obtain a charging decision.
· Further investigation is needed; and that the charging decision or investigation is being conducted diligently and expeditiously.
The court has the power to allow as many extensions they consider appropriate but will initially consider an extension of three months (or six months if three months is not considered sufficient).
The court can decide whether it is in the interests of justice to allow a hearing but the usual process will be for them to consider whether to extend bail on the papers unless the total period of time would be more than 12 months.
The new legislation supports the view that there should be a presumption in favour of ‘release without bail’ unless it is considered necessary and proportionate.
Who will this affect?
The new provision will only apply to suspects arrested on or after the 3rd April 2017 and do not apply to any suspect already subject to police/pre-charge bail. Likewise, it will not apply to any suspect arrested on suspicion of terrorism offences.
Suspects that are bailed by the Police may still be waiting months, or even years to discover their fate. There will be no change to the ultimate decision as to whether a suspect will be charged, therefore, having bail or not makes absolutely no difference in being subjected to an on-going police investigation.
If a suspect is released without bail, they will not be legally obliged to attend a police station and will be referred to as being released ‘under investigation’ (unless they have been given written notification that no further action has been taken). There is no time limit for a person being released under investigation.
There are no limits on the number of extensions that can be requested by the police and if they are satisfied that bail is still necessary and proportionate they would have a further 28 days to investigate an offence or to request charging advice from the CPS. In the event that they are unable to work within the 3 month limit, the Police would be required to make an application to the Magistrates’ Court for an extension.
The likely effect on the police is that they will have a vast increase in paperwork, red tape and less time to conduct beneficial police work. This is evidenced by a requirement that a Senior Officer (Superintendant) must arrange for a suspect or legal representative to be informed that a determination is to be made, he must consider any representations and must inform them whether authorisation has been given to an extension of bail.
The reasons for lengthy bails have quite simply been because the police have poor budgets and resources to expeditiously investigate offences where digital and forensic evidence is involved. This is mirrored by the similar problems faced by the CPS which causes delays in providing advice on what charges if any, are appropriate. These changes in legislation are likely to exacerbate and frustrate both the police and CPS work.
There are likely to be many applications being made to the Magistrates’ Court and it is expected to become routine. Not only will this put pressure on already stretched police resources but it will inevitably slow the Court timetable.
It is believed that the changes were needed to make a positive change to prevent people being forced to spend months and sometimes years on bail without conviction or charge with no independent scrutiny or regulation. A change to these scenarios can only be fair and just.
Regretfully, the changes are extremely unlikely to provide any practical benefit to any suspects who could remain subject to an investigation indefinitely but without the tag of being ‘on bail’.
Here at WMB Law, we are experienced in making sure that we are fully appraised of changes in legislation especially when we are ensuring that the police are observing the law correctly. We have specialised in all aspects of Criminal Law for over three decades and have profound expertise in Motoring Offences, Sex Offences, Conspiracies and Proceeds of Crime.