Tuesday, 4 April 2017

Police Bail Pre Charge ~ A note on changes to the law

The Policing and Crime Act 2017 is yet another large Act comprising 184 sections (divided into 9 Parts) and 19 Schedules.  A further 204 pages of Explanatory Notes have been published.  Police Powers are the subject of Part 4 of the Act which encompasses several aspects of the law including amendment of the law relating to PRE-charge Bail.

The problem:

A considerable number of cases have raised concern about the length of time that individuals have been subjected to Police Bail whilst investigation continues.  Conditions attached to such "pre-charge bail" have, at times, been very onerous.  One high profile example was the case of BBC Presenter Mr Paul Gambaccini who was falsely accused of a sexual offence - see Telegraph 10th October 2014 and The Independent 3rd March 2015.  Apart from the trauma of being falsely named as a suspect, Mr Gambaccini was suspended from work by the BBC.

Use of Police Bail:
Prior to charging a suspect with a crime, there are generally two scenarios where the police may grant bail with or without conditions:

• Where there is as yet insufficient evidence to charge a suspect with an offence and it is necessary to continue to investigate without them being held in custody.
• Where the police consider there is sufficient evidence to charge the suspect, but the case has been referred to the Crown Prosecution Service ("CPS") for a charging decision.


In December 2014 the government issued a consultation with a view to changing the law relating to pre-charge bail.   Proposals for legislative change followed:
• Providing for a presumption to release without bail, with bail only being imposed when it is both necessary and proportionate;

• Setting a clear expectation that pre-charge bail should not last longer than a specified finite period of 28 days (subject to the possibility of extension);

• Making provision for when that initial period might be extended further, and who should make that decision (including longer periods to be determined by the courts);

• Making clear that, where an individual has been released without bail while analysis takes place of large volumes of material, the police can make a further arrest where key evidence is identified as

a result of the analysis of that material that could not reasonably have been done while the suspect was in custody or on bail;

• Providing a procedure to allow sensitive information to be withheld from a suspect where its disclosure could harm the investigation, such as where disclosure might enable the suspect to dispose of or tamper with evidence; and

• Providing for an exceptional case procedure. 

Outline of main changes:
The key changes are:
  • There is a presumption of release without bail unless the necessity and proportionality criteria are met.
  • Where these criteria are met a maximum 28 day period of pre-charge bail can be granted by an Inspector.
  • This period can be further extended to a period of three months by a Superintendent.
  • An applicable bail period (ABP) will be set by the authorising officer and this is the window of time in which a custody officer may set and vary bail.
  • The Applicable Bail Period can only be further extended by a Magistrates’ Court upon application by the police.
  • There are longer time limits for cases designated as ‘exceptionally complex’ for example SFO investigations.  

One criticism is that the law is almost unintelligible to the citizen.  Alec Samuels writing in the Solicitors Journal comments:

"One might have thought that for the benefit of the citizen, the legal profession, and the police, the law relating to the granting of bail would be simple, straightforward. and intelligible. The new law, while a very comprehensive and detailed series of amendments to PACE, is totally unintelligible, and will remain so until a clean copy of PACE, as amended, and guidance from the Home Office, the law publishers, and perhaps the Police College becomes available ....."

Pre-charge bail is only to be imposed where it is "necessary and proportionate in all the circumstances" but there is no legal definition of this test.  

Referral of cases to the Crown Prosecution Service (CPS) for either advice or a charging decision can result in considerable delay and this time is excluded from the bail time limit.

Note also that the Act inserts new sections 47ZA to 47ZM into the Police and Criminal Evidence Axt 1984.  These new provisions cover (inter alia) applications to a Magistrates' Court for extensions beyond the basic 28 days.  Such applications will normally be decided by a single justice on the basis of written evidence.  It is perhaps surprising that - (at least so far) - very little concern seems to have been raised about this.

See also the discussion by Bindmans Solicitors in which various concerns are raised.

An excellent resource for the new law is at Lydia Pearce Legal

The changes to the law took effect on 3rd April 2017.  

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