Tuesday, 4 January 2011

Police Powers - Bail

A man was held by Police for questioning in connection with the Joanna Yeates murder.   Later, he was released on bail.  He has not been charged and the basis for the bail has not, so far as I know, been published.  I do not wish to comment about this case further but it made me look again at the Police and Criminal Evidence Act 1984 - commonly referred to as PACE.   At first, I looked at the powers of the Police relating to the duration of detention - see here.   Of course, many years ago (or, so it seems) the Police had to either charge someone or let them go free without bail.  This is certainly not the present position.  Parliament has seen fit to gradually extend Police powers and it is possible for persons to be questioned by the Police and then released on bail - usually to have to return to the Police Station at some specified date.  Sometimes there can be conditions attaching to such bail and these may be quite onerous.  The bail may last for a considerable time.  In none of this has any court become involved.  These are Police powers.

Underpinning any decision relating to bail
is the Bail Act 1976 which sets down the conditions under which a person may be refused bail or granted conditional bail.  Conditions have to be "necessary" to meet a specific concern - e.g. if there is a concern that the person may abscond then conditions can be imposed to restrict the person with a view to preventing that happening.  Thus, there may be a "residence" condition etc.

The key Police powers in relation to arrested persons are in the Police and Criminal Evidence Act 1984 (PACE) which has been extensively amended over the years notably by the Criminal Justice and Public Order Act 1994 s.27;  the Criminal Justice Act 2003 s.28 and Schedule2 and the Police and Justice Act 2006 s.10 and Schedule 6.   I do not propose to go through the whole of that complex trail and the following is a mere summary of the pertinent points in PACE Part IV.

PACE s.34 - if at any time a custody officer (a) becomes aware, in relation to the person in police detention, that the grounds for the detention of that person have ceased to apply and (b) is not aware of any other grounds on which the continued detention of that person could be justified under this Part of this Act, it shall be the duty of the custody officer, ..... , to order his immediate release.   s.34(5) requires such release to be without bail unless s.34(5)(a) or (b) applies.  s.34(5)(a) applies where there is need for further investigation.  If bail is applied under s.34 it must be unconditional bail.

PACE s.37 - this deals with the duties of custody officers before charge.  s.37(7) applies when the custody officer determines that he has before him sufficient evidence to charge the person with the offence for which he was arrested.  s.37(7) provides for four options.  s.37(7)(a) - release on bail without charge pending the Crown Prosecution Service (CPS) making a "charging decision."  s.37(7)(b) - release on bail without charge but for some purpose other than awaiting a charging decision.  s.37(7)(c) is simple release without charge and without bail.  s.37(7)(d) is that the person is charged.  Bail under s.37(7) can be conditional.  Under s.47(1E) a Magistrates' Court may,on an application by or on behalf of the person, vary the conditions of bail.  Rule 19.1 of the Criminal Procedure Rules applies to such applications.

"Charging Decisions" - Under PACE s.37A, the Director of Public Prosecutions may issue guidance for the purpose of enabling custody officers to decide how persons should be dealt with under s.37(7) - (or under certain other sections).  Here is the latest Guidance.

Under PACE s.37B - When a person is dealt with under s.37(7)(a) the Police have to consult with the CPS and the latter are responsible for making a "charging decision" or, sometimes, a decision to caution the person.  A caution may be a simple or a conditional caution

These are considerable powers for the Police and prosecutors to have.  The powers are exercisable without reference to the courts.  Usually, it is only if and when the person is charged that the courts become involved.  In 2006, when the Police and Justice Bill was passing through Parliament, LIBERTY raised concerns in a Briefing paper for the Second Reading of the Bill.   Liberty was concerned with the potential for misuse in these provisions.  In April 2010, such an allegation was made by women involved in the Aldermaston Women's Peace Campaign.  See also The Guardian 14th April 2009 - "Police raid dozens of homes as climate change activists arrested."  The following shows the Briefing paper prepared by Liberty in 2006 and please see especially paragraphs 12 to 16.

Police and Justice Bill Liberty Briefing                                                            

Comment on this post would be especially welcome from criminal justice practitioners.  It would be particularly interesting to know whether the concerns raised by Liberty have manifested themselves in practice and, if so, how.


  1. This is a very interesting post and it raises a large number of questions - but I shall ask for your opinion on one matter at this stage. In my view, it is difficult to envisage the circumstances in which a person should be released on CONDITIONAL bail without charge. I am not saying that this does not happen: it does. But the logic escapes me. Perhaps you have a different view? If a person, released on conditional police bail without charge, then breaches one or more of the conditions, are they brought before a magistrates court, or are they brought back to the custody officer to be dealt with? Presumably the same time limits would apply in either case? A custody officer would, presumably, only be able to vary conditions since only the court could remand in custody? As an aside, one reason for night courts in the large american cities is that the US police do not have bail powers. The Constitution requires criminal prosecutions to be speedy and public. The grant of bail is part of the process and must, therefore, be both public and speedy.

  2. PACE 1984 s.46A gives the police a power to arrest a person who has been released under police bail. Arrest can be for failure to attend the police station at the appointed time - [46A(1)] - or for breach of a bail condition - [46A(1A)]. The arrested person would then be dealt with by the police. There is normally no reference to the courts at these pre-charge stages.

    Having arrested the person, the Custody officer has to apply either PACE s.37C or s.37CA. Basically, they must either charge the person or release him again on bail with or without conditions. Release on conditional bail must be on the same conditions (if any) as before.

    As I say, all of these are POLICE powers and the courts are not normally involved.

  3. These powers are widely in my view abused by the police. They also endorse bail conditions that frequently breach decided cases and in some cases are simply unenforceable. For example. a condition to reside at an address and present yourself to a police officer on request. Fine. The police say we will come at night. With no time band for that person to be in their house it is a 24 hour curfew. Technically, if the police come at Noon and your out you have breached it and could be arrested. More recently the prohibit access to the internet. COA cases say that this is an infringement on human rights as we get our mail via that medium, do our banking etc etc.
    PACE always allowed a right of appeal to another Custody Officer and then an appeal to the local Magistrates and presumably from them to Higher Courts. The Government through the Criminal Procedure Rules has recently improved this procedure by allowing a direct appeal to the Court without a review by an alternative custody officer. The forms are proscribed in CPR though locally i have found that the Court prefers the Suspect to serve a copy on the Officer in Charge as well as the CPS, though this isn't a condition in CPR, however, it does make sense. I have successfully used these now on 3 occasions since the introduction of the forms last either October or November (2012) a far more regular occurrence than prior to the forms being available. Legal Aid is available to the suspect free of charge to make this application also.

  4. If an uncharged suspect is bailed, is ready to attend on the stipulated date but the Police cancel the 'appointment" (usually the day before!) - this happens frequently. At that stage, in my experience, the Police will formally re-bail informing the suspect's solicitor and the suspect (the latter by post). I have seen this re-bailing go on for an eternity (over a year). But what of the situation (not unknown) for the police to inform thesolicitor that they have changed the date (yet again!) but give no re-bail date. There is no formal bail form sent. Is the suspect still on bail just by the Police simply saying the suspect is re-bailed? Local solicitors seem to think that in these cases the suspect is still on bail and any conditions apply. But I wonder if that be the case. The re-bail or variation of bail is sanctioned formally by a custody officer (separate from the investigating officer but clearly informed by him/her), a form is required - but I muse whether this formality is not just a matter of form but of substance. If no date is given for the revised attendance, no variation has been issued (formally or not). So my question is this: if a bail date has passed because of delay, and the Police 'say' that they have rebailed or will re-bail (but formally have not and given no next answering date) has the bail lapsed completely (requiring a new arrest?).

  5. Hey, I know that I'm posting this a LONG time after the original post, but if someone reads this could they please kindly reply? Recently on the news there was something about a suspected terrorist breaching his bail conditions (by not surrendering his passport) and subsequently failing to attend the police station as stipulated on his bail sheet.

    From one of the earlier posts this was mentioned "Arrest can be for failure to attend the police station at the appointed time - [46A(1)] - or for breach of a bail condition - [46A(1A)]. The arrested person would then be dealt with by the police. There is normally no reference to the courts at these pre-charge stages."

    Does this mean that the police have the power of arrest after a suspect fails to attend at the police station after being granted pre-charge bail? In other words, would the police not/not need to apply for a warrant from the courts? If not though, how would the police know to arrest someone who failed to attend (for example if they stopped someone on the streets) - is there an 'internal' police system to facilitate this?

    After reading all of this information, it seems that pre-charge bail is both too lenient for those who are suspected of having committed serious offences, and too harsh for those who committed relatively lesser ones...