Police bail: what happens now?

The ongoing Home Office public consultation on pre-charge police bail has thrown open once again the question of the proper balance to be struck between the investigation of crime and the human rights of a suspect against whom there is no formal charges.  

There is rarely a speedy resolution to any police investigation in the modern era. Those arrested or placed under suspicion of having committed criminal offences may be ‘released under investigation’ whilst the police make further enquiries or typically send off devices or other items for analysis.  

On occasion, however, and usually where the police wish to impose restrictions on liberty, suspects may be released without charge on police bail. Before 2017, such powers were effectively unlimited but amendments to the Police and Criminal Evidence Act 1984 [PACE] by the Policing and Crime Act 2017 changed all that. So what is the current position? 

Effectively, it means that the power of the police to impose bail without charge is now restricted. The 2017 amendments make distinction between cases being investigated by the Serious Fraud Office, the Financial Conduct Authority and ‘any other case’. In any other case the custody sergeant, on deciding to release a person on bail to return to the police station, must set that period at 28 days.  

At the end of the 28-day period, unless the case has been sent to the Crown Prosecution Service for a charging decision to be made, police bail can only be extended where a senior officer has reasonable grounds for believing: 

1. the suspect to be guilty of the offence; and  
2. further time is needed to either make a charging decision or for investigation; and 
3. the investigation has proceeded diligently and expeditiously to date; and 
4. the continued imposition of bail is necessary and proportionate. 

If the answer to each of the questions is yes, and he has given the opportunity to the suspect and his legal representatives to make representations, then he/she may extend bail but only up to a maximum of three months from the date of arrest. The police have no further power to extend bail beyond that period. 

If the police wish to extend bail beyond the three-month limit then this would need to be authorised by a magistrates' court. A magistrates' court has the power to extend for a further three months on application provided it is also satisfied that further time for the investigation is needed, that the investigation has proceeded diligently and expeditiously and the continued imposition of bail is necessary and proportionate.  In such circumstances, the magistrates' court may extend bail up to six months from the date of arrest (and then on further application by three months or six months).  

The restrictions on police bail were implemented for good reason. The law does not allow for delay or dilatory investigations, but it does make provision for power to be exercised with checks and balances. Such power must be exercised sparingly and only where there is good reason.  

The question of proportionality and the potential impact on the Article 5 right to liberty and the Article 8 right to a private life (under the European Convention on Human Rights) are important here. There is little decided case law on the subject (and none since the implementation of the new provisions). However, the High Court has decided, for example, that it was disproportionate and unlawful to prevent a suspect from returning to their home. It is to be hoped that the outcome of the current consultation does not swing the balance back in favour of the arbitrary exercise of the restriction of liberty without appropriate supervision.  

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