New guidance published for pre-charge bail

The Policing and Crime Act 2017 made changes to pre-charge bail and introduced the presumption that suspects should be released under investigation, unless bail is deemed “both necessary and proportionate in all the circumstances”. Emily Landale provides the highlights.

Emily Landale

The National Police Chiefs’ Council has issued new guidance for officers in relation to the use of pre-charge bail following the changes made by the Policing and Crime Act 2017.

The impact of the changes contained within the Act was a reduction in the use of bail, with suspects instead being released under investigation. In the six months following the introduction of the new legislation, use of bail fell by 75% and 65% in domestic abuse cases. The number of defendants remanded on bail by the police before appearing in court decreased by 24% in December 2018, with the number of defendants remanded in custody decreasing by 7%.

Chief Constable Darren Martland, the National Police Chiefs Council Lead for Bail Management said –

New operational guidance issued to officers reinforces the importance of conducting investigations as quickly as possible. It will help officers consider the vulnerabilities of each case and determine the appropriate course of action

The guidance is an interim response and is intended to “reinforce the message that in the right circumstances, the use of pre-charge bail is still a legitimate investigative and safeguarding tool”.

The Guidance

The consideration of whether or not to apply bail must take in to account all the circumstances of the case, including the necessity to support and protect victims and witnesses and ensure public safety. When considering supporting and protecting witnesses, vulnerable witnesses at a high risk of harm should be given specific consideration.

The guidance is designed to assist officers and staff in making clear and effective risk based decisions in relation to suspects and witnesses when using pre-charge bail or released under investigation during the course of their investigations.

The guidance also provides assistance with the applicable bail periods that can be authorised with by the police and the circumstances in which extensions can be sought. The guidance outlines the roles and responsibilities of various members of the police in relation to investigations and the imposition of bail.

Pre-Charge Bail

Pre-charge bail must not be used as a punishment. Bail managers are required to ensure that bail is necessary and proportionate. The decision making process must be transparent, and the need for bail must be commensurate with the investigative plan as it develops.

Necessity

Pre-charge bail may be considered necessary if it is:

  1. For preventing that person from failing to surrender or committing further offences
  2. For preventing that person from interfering with witnesses, or obstructing the course of justice (in relation to himself or any other person)
  3. For that person’s own protection

Proportionality

Pre-charge bail may be considered proportionate if the condition is not used unfairly, and it is limited to the minimum of what is required to achieve a legitimate policing purpose. Any condition must be proportionate to the aim being pursued.

Applicable Bail Period (ABP)

Three main applicable bail periods can be authorised by the police. They are:

  1. 28 days authorised by an Inspector – Initial Applicable Bail Period
  2. An extension of three calendar months from the bail start date authorised by a Superintendent – Extension to the initial ABP
  3. Further extension of three calendar months, authorised by an Assistant Chief Constable or Commander – Further extension to the initial ABP

Any other extension requires authorisation by a magistrates’ court and at such a hearing the suspect and/or legal representative must be allowed to make representations.

The guidance reminds officers to quality assure the forms used when making applications to magistrates and provides ways in which that quality assurance can be met.

The Custody officer and/or supervisor will ensure that there is an effective risk management strategy for the suspect and assist the investigating officer in determining whether bail should be imposed.

Released under Investigation in Domestic Abuse Cases

If a suspect has been arrested in connection with an offence involving vulnerable people or domestic abuse (“high harm cases”) the decision making process behind not using pre-charge bail should be documented. Serious consideration should be given to the imposition of bail with conditions attached in order to safeguard victims and witnesses. Officers are advised to consult a detective inspector before suspects in domestic abuse of “high harm” cases are released under investigation.

Custody Officer

Where pre-charge bail does not satisfy the necessity or proportionality tests, a custody officer must release the suspect without bail. They will be released under investigation (RUI). Prior to that release, a risk assessment must be documented. The risk assessment is designed to manage the risks that RUI will have on victims and witnesses. A custody officer can request and record the observations of a detective inspector in domestic abuse or “high harm” cases.

The threat, risk or harm associated with the investigation must be proportionately managed and the safeguarding of all persons linked to the investigation must be taken in to account.

Suggested good practice where a suspect has been released under investigation is that a documented supervisory review of the investigation takes place at least every 30 days until completion and a disposal actioned. The supervisor will be responsible for reviewing and setting the post-custody investigation ‘Expected Finish Date’. Where safeguarding may be an issue and the case is therefore a high priority, it should be reviewed by a Sargent every 10 days. At each review, the Investigating Officer will provide updates to the suspect, their legal advisor and the alleged victim.

A review is conducted by an Inspector after 3 months, and by a Superintendent after 6 months. This is to ensure RUI suspects are subject to appropriate review and management supervision. The new guidance should provide the impetus for more expedient investigation, and reduce the number of people released under investigation.

This imposition of bail conditions to those who are yet to be charged could potentially reduce the risk to witnesses in domestic abuse cases, whilst also allowing for more efficient investigation – reducing the number of people living under a cloud of suspicion whilst investigations are completed.


Emily Landale is a second-six pupil at Central Chambers. Her pupil supervisor is Kirstin Beswick.

Her pupillage is a mix of criminal and family practice and Emily takes instructions in both areas of practice.

For all family law enquiries, please contact our Family Clerk, Kate Smith by calling 0161 2361133 or email kate.smith@centralchambers.co.uk

For criminal law enquiries, please contact Jayne Lever or Neil Vickers (Senior Clerks) on 0161 23611133 or clerks@centralchambers.co.uk

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