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Lexis Nexis interview: The Home Office’s pre-charge bail consultation— scrutinising the government’s response

Corporate Crime analysis: Nick Brett, partner at Brett Wilson, discusses the Home Office’s consultation on pre-charge bail and the government’s response. He concludes that the proposals do not represent a complete reversal of the changes brought about in 2017 but do reflect concerns that the current regime adds unnecessary bureaucracy and may have led to longer investigations, wasted court time and the undermining of victim confidence.

Original news

Government response to consultation on pre-charge bail legislation published, LNB News 14/01/2021 26

What was the aim of this consultation?

The aim of the consultation was to seek the views of stakeholders in the Criminal Justice System about the effect of changes in the imposition of police bail brought about by the Policing and Crime Act 2017 (PCA 2017). The government was then concerned about the effect of placing suspects, who had not been charged with any offence, on long-term bail, sometimes for years on end and sometimes with conditions restricting their liberty. Prior to the legislative changes in 2017, all persons under investigation for a recordable offence, but not charged, were bailed by the police either unconditionally or with conditions. The decision on bail rested with the custody sergeant, although it could be reviewed by a magistrates’ court. It was, in fact, Theresa May, when Home Secretary, who was the driving force behind the need for change and the legislation was introduced when she was Prime Minister.

PCA 2017 introduced a presumption against imposing bail on suspects who were not charged. Under the present system, bail can only be imposed where it is necessary and proportionate. If a suspect is released on bail, then the initial period of bail has to be 28 days. Prior to the expiry of that 28-day period, the police have to either cancel bail and release the suspect under investigation (colloquially known as RUI) or obtain an authority from a superintendent to extend bail. Prior to making that decision the superintendent is required to seek representations from the suspect or his solicitors. If, having considered any representations, the superintendent decides to extend bail, they can only do so for another two months (three months from the date of arrest). If the investigation is still not completed after three months, and the police wish to extend bail, then it is currently necessary for them to apply to a magistrates’ court for authority. In such applications, the threshold test applied by the magistrates is relatively onerous to the extent that it requires the police to have acted with all due expedition and the continuation of bail to be necessary and proportionate. The magistrates can then extend bail at three monthly intervals subject to review. There are provisions within PCA 2017 to extend time limits for serious fraud and other complex cases.

As one might expect, the police consider the current legislation to be unduly onerous and the current Home Secretary decided to consult on proposed changes to it. It will come as no surprise that the respondents to the consultation disproportionately consisted of the police who, in large part, were in favour of relatively wholesale change. The consultation suggested various proposed ‘models’ giving an increasing degree of flexibility to the Police ranging from the existing Model to Model C.

What are the key government conclusions and identified next steps?

Perhaps unsurprisingly, the government concluded that the constraints on the police, both in terms of the restricted ability to use bail, and the time in dealing with the bureaucracy associated with the current legislative regime contributed to a necessity for change. The conclusions also expressed concerns about the victims of crime feeling unprotected in circumstances where there was no restriction on a suspect’s liberty. Residual concerns included the length of time of suspects were being released under investigation (effectively that this was apparently causing ‘drift’ in investigations) and the fact postal requisitions (issued to those released under investigation) were often leading to missed court dates causing delay and additional administrative issues at court. A proposal for the introduction of legislation for a new offence of failing to comply with police bail conditions will not be proceeded with for the moment but is to be kept under review.

The proposal is to seek a legislative change to the current police bail regime by introducing the proposed Model B. Under the new model, there will be no presumption against bail. Instead, a custody sergeant will decide whether to release a suspect on bail and, if so, can do so for an initial period of three months. If it is necessary to extend bail beyond three months, the authority of an inspector will be required. The inspector may extend bail for another three months at the end of which period a further extension will be required by a superintendent. The superintendent can extend for a further period of three months (to a maximum of nine months) beyond which juncture the police will require the authority of a magistrates’ court.

What impact will the proposed changes, if subsequently passed, have in practice?

It will be interesting to review the draft legislation to consider the threshold requirements introduced at each stage. Fortunately, I do not think the proposal represents a complete reversal of PCA 2017.

Police bail will still be time limited and it is to be hoped that there will be scope for submissions at each stage and a right of review by appeal to a magistrates’ court to guard against perverse decision making.

I think it will mean that police bail will be imposed in most cases which reverses the current position where most suspects are ‘released under investigation’. My own view is that this is unlikely to remedy the current tendency for ‘drift’ in police investigations and decision making, which is much more a consequence of resource issues than the status of the suspect. It is now the norm, even in the most straightforward investigation, for a decision on the conclusion of the investigation to be delayed beyond the period immediately following arrest and the interview under caution.

While the new proposed legislation is likely to be popular with the police, because of the reduced administrative burden, there will be continued complaints about delay until and unless further resources are directed towards the expedition of police investigation and the prioritisation of more serious cases. The imposition of bail is unlikely to assist in the expedition of a police investigation.

The full version of this article was first published on Lexis® PSL on 4 February 2021 and is reproduced with permission and thanks. 

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Articles are intended as an introduction to the topic and do not constitute legal advice.