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This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice.

New Pre-charge Bail Limits
 Briefing 
Author
Gareth Minty & Matthew Ewens
Date
26 April 2017

New Pre-charge Bail Limits

The new procedures that came into force on 3 April 2017 relating to police bail provide for a potential sea-change in the way individuals under criminal investigation will be dealt with. 

Is this change merely a political device to paper over the cracks of what some might suggest is a broken criminal justice system, or will it result in real and visible benefits to those under investigation? 

The position before 3rd April

Previously there were very few checks and balances upon the length of time that an individual could be kept on police bail. It was not unheard of for suspects to remain on police bail for years while they waited to learn whether they were to be charged with any offences.  

The position now

The Policing and Crime Act 2017 amends the Police and Criminal Evidence Act 1984: the changes apply to anyone arrested on or after 3 April 2017. The amendments are not retrospective so anyone arrested before 3 April will be treated under the old system.

The main change is that where the matter is still at the investigation stage and has not yet been referred to the CPS for a decision whether to charge, there is a presumption that a suspect will be released without bail unless it is 'necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed)'.  

If pre-charge bail is imposed then it may last for an initial period, the length of which is dependent on the type of case. If it is a case being investigated by the SFO then the initial period may be no more than 3 months.  For all other cases (including cases conducted by the FCA), that period shall be no more than 28 days.

That initial bail period can be extended further, up to a maximum of 3 months from the initial bail date (for standard cases) or 6 months (for SFO cases or standard cases designated as 'exceptionally complex'), but that is the limit of that initial period. Thereafter, any further extensions need to be applied for and granted by a Magistrates' Court.

A successful first application to the Court may result in an additional 3 months being added to the above initial bail periods (making them 6 and 9 months, respectively, from the initial bail date). Subsequent applications may result in up to 3 more months being added to those periods, unless a particular exception applies, in which case that further extension can be up to 6 months.

The result is that the absolute maximum that a suspect can remain on pre-charge bail is 15 months for cases of the greatest complexity.  Additionally, and importantly, the individual on bail will have a number of opportunities to make representations to the Court.

Effect

There is no doubt that a maximum of 15 months is a far cry from the years that suspects have previously spent on bail.  And that must be a positive development, particularly as it comes with an opportunity for an individual to actively oppose the continuation of their bail, if they choose to do so.

But will the introduction of these time limits achieve the objective that lies behind these amendments, namely bringing an end to uncertain and apparently endless investigations?  Even the most optimistic commentator would have to accept that the achievement of such an ambition will take more than just these new procedures.  The investigators who will now be governed by these changes have not seen any concurrent increase in their own resources to enable them to progress cases more efficiently and expeditiously.

What the changes do, however, is present investigators with a choice.  It is likely that an investigator seeking a court-authorised extension will be required to disclose more about the progress of their investigation than would previously have been the case.  That will not sit comfortably and will not come naturally.  The individual under investigation may well find that they gain a greater insight into the case against them than would otherwise have been the case, and particularly so in cases involving multiple suspects.

Conclusion

So will the new limits result in a marked change in the way criminal investigations are handled? Or will we simply witness an increase in the number of suspects not on bail but ultimately still under investigation, and now for longer periods than would have been the case under the old system?  It may be cliché but, in the case of these changes, time really will tell.