Pre-Charge Bail

If a person is arrested on suspicion of an offence, but there are insufficient grounds to charge that person, then they may be released on either pre-charge bail or without bail (under investigation).

Pre-charge bail is also known as police bail. It is different from Magistrates' Court bail, which we have previously written about.

In this article we give a quick, whistle-stop tour of the pre-charge bail process. We shall try to cover the key points, but our article will not be as exhaustive as the official guidance on the Sentencing Council website and suchlike. Anyone with a deeper interest is advised to refer to that official guidance. We'd invite readers to comment if they notice any glaring errors or omissions in this article.

The primary legislation relating to pre-charge bail is at part IV of the Police and Criminal Evidence Act 1984, as amended by part 4 of the Policing and Crime Act 2017.

Suspects on pre-charge bail have their civil liberties restricted to a certain extent. They must report to the police as and when required. They might also be subject to specific conditions about where they can go and who they can associate with. The rules are intended to protect victims and witnesses, preserve evidence and mitigate the risk of suspects committing crime.

Until the 2017 Act came into effect pre-charge bail was exclusively a police matter, with no judicial oversight by the Magistrates' Court.

During Operation Yewtree it became apparent that the police were keeping certain high profile individuals - most notably Paul Gambaccini - on extended periods of bail when there was little justification in doing so. By virtue of their bail status these personalities, who have never been charged with any offences, were subject to the public finger of suspicion and erosion of their civil liberties.

The police are no longer able to release suspects on bail for an indefinite period of time.

Presumption of release without bail (under investigation)

Under the 2017 Act there is now a presumption that a suspect should be released without bail (under investigation) unless the pre-conditions for bail are satisfied.

The pre-conditions for bail are:

(a) that the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and;

(b) that an officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person or the person's legal representative).

The 2017 Act does not define the meaning of necessary and proportionate, but guidance issued by the College of Policing suggests that the bar is set quite high.

According to the College of Policing, authorisation of bail is necessary:

• in the interests of national security;
• for the prevention of disorder or crime;
• in the interests of the economic well-being of the United Kingdom;
• in the interests of public safety;
• for the purpose of protecting public health.

Authorisation of bail is proportionate if:

• what is being done is not arbitrary or unfair;
• the restriction is strictly limited to what is required to achieve a legitimate public policy;
• the severity of the effect of the restriction does not outweigh the benefit to the community that is being sought by the restriction;
• any restriction must be proportionate to the legitimate aim being pursued.

Pre-charge bail time limits

Release on pre-charge bail must be authorised by an inspector. The initial period of pre-charge bail is limited to 28 days and the police should make all reasonable efforts to complete their investigation and reach a charging decision within that time.

An extension to the initial bail period, up to 3 months from the bail start date, can be authorised by a superintendent.

In those few cases designated as being exceptionally complex, an additional 3 month extension can be authorised by an assistant chief constable (or equivalent).

Further extensions to pre-charge bail of up to 6 months must be authorised by the Magistrates' Court (a single Justice of the Peace satisfies this requirement).

Conditions for extending pre-charge bail

For the extensions of pre-charge bail to be granted by the police, the following conditions must be satisfied:

• Condition A – The decision maker has reasonable grounds for suspecting the person is guilty of the relevant offence;
• Condition B – The decision maker has reasonable grounds for believing that either:
• further time is needed to make a police charging decision, or
• that further investigation is needed of any matter in connection with the relevant offence.
• Condition C – The decision maker has reasonable grounds for believing that either:
• the police charging decision, or
• the police investigation is being conducted diligently and expeditiously.
• Condition D – The decision maker has reasonable grounds for believing that bail is both necessary and proportionate in all the circumstances. This decision should have particular regard to any conditions being imposed.

For extension of pre-charge bail granted by the Magistrates' Court, only conditions B and D need be satisfied.

Extensions to pre-charge bail in the Magistrates' Court

HMCTS has established several regional hubs for processing applications for the extension of pre-charge bail submitted by police forces. These are located at the following locations:

• London and South East: Highbury Corner Magistrates' Court
• South West: Bristol Magistrates' Court
• Wales: Cardiff Magistrates' Court
• Midlands: Birmingham Magistrates' Court
• North West: Manchester Magistrates' Court
• North East: Gateshead Magistrates' Court

Additionally, all applications relating to Serious Fraud Office, Financial Conduct Authority and terrorism cases are processed by Westminster Magistrates' Court.

Applications are completed on the relevant form and the suspect has the right to make representations opposing any extension.

Most applications are dealt with by a single Justice, but the police or suspect can request an oral hearing in contentious cases. These hearings are usually conducted over the telephone, but can be in person.

A fairly typical completed application might run to 5 or 6 sides of A4 and take about 10 minutes to consider.

The Justice can either authorise the extension, reject the extension or allow a shorter extension than requested.

It would be fair to say that most applications are in relation to very serious allegations - murder, rape, robbery and child sexual offences seem to be the norm, as those are the suspects the police want to keep a very close eye on under bail conditions.

Investigations requiring detailed forensic analysis or the examination of electronic devices can also be quite time consuming, which often necessitates an extension of bail.

Despite the seriousness of the allegations in question, some applications are very poorly completed by the police. They will be rejected if there is insufficient information to show that the necessary conditions have been satisfied. Similarly they will be rejected if it appears that the police are not conducting the investigation expeditiously and with due diligence.