Police powers: pre-charge bail
The following is a submission to the government consultation on pre-charge bail by Professor Ed Cape, Matthew Hardcastle and Sandra Paul, co-authors of Defending Suspects at Police Stations (8th ed, LAG, 2020 forthcoming). Between us, we have many years’ experience as practising and academic lawyers, with particular expertise in criminal law and criminal procedure.
The submission
The 2017 reforms were designed to reduce both the number and length of pre-charge bail investigations. It was hoped that by doing so police investigations would become more focused and the rights of un-convicted suspects would be better protected.’ (House of Commons Briefing Paper 8757 p4)
The consultation Police Powers: Pre-charge Bail sets out a number of proposals and questions. The context relating to police bail without charge, in terms of the problems that the bail provisions of the Policing and Crime Act 2017 sought to address, the provisions themselves, and the police response to those provisions, is important in determining the appropriate action to be taken now. Therefore, in this response, we first set out a narrative account of those issues before addressing the questions posed in the consultation paper. We note at the outset that we do not think that the term ‘pre-charge bail’ is appropriate, since the evidence suggests that a significant proportion of those placed on ‘pre-charge bail’ are not prosecuted or proceeded against in any other way. A more appropriate term is ‘police bail without charge’. However, we do refer to pre-charge bail in this response since that is the term adopted for the purposes of the consultation.
The original problem with pre-charge bail was the number of suspects who were bailed by police for lengthy periods of time, often with conditions, and often resulting in no further action being taken at the end of the investigation. Bail was frequently extended automatically, and without any opportunity for the person on bail to challenge either the length of bail or the merits of and/or justification for the investigation continuing. Bail conditions (which could be very onerous) could be challenged at a magistrates’ court, but not the fact of bail itself. There was no limit on the number of times that bail could be extended, and no limit on the length of investigations (except as a consequence of the 6-month limit on initiating a prosecution in most summary-only cases). National statistics on pre-charge bail were not compiled, but the College of Policing estimated that in the 12 months from April 2013, over 400,000 people were placed on bail without charge, 26,000 (6%) of whom were on bail for more than six months. Research by Professor Hucklesby in two police forces between 2011 and 2013 found that nearly half of those subjected to police bail without charge were neither prosecuted nor dealt with by way of an out-of-court disposal, and that police officers were often able to foresee at the time that bail was imposed that a charge was unlikely. There were few court challenges to the imposition of bail without charge but, in any event, courts were extremely reluctant to intervene (see, for example, R (C) v Chief Constable of A and A Magistrates’ Court [2006] EWHC 2352 (Admin)), and the Northern Ireland High Court rejected the argument that pre-charge bail without judicial involvement breached the requirement in the European Convention on Human Rights Article 5(3) that an arrested person be produced promptly before a judge (HA (a minor) [2014] NIQB 115). For an account of the research evidence and the relevant case-law, see E Cape, ‘The Police Bail Provisions of the Policing and Crime Act 2017’ [2017] Criminal Law Review 587.
Thus suspects, in respect of whom, by definition, there was insufficient evidence to charge, were kept waiting for a decision, often for many months and in some cases years (in one case, three and a half years), and in the case of those subject to conditions, subject to restrictions on their freedom of movement and their ability to live their lives as they chose. Arguably bail, especially conditional bail, did provide some protection for putative victims. However, whilst a suspect could be arrested for breach of conditions, if the police were not in a position to make a charge decision, they had no powers other than to release the suspect on bail again. Thus, the protection afforded to victims by conditional pre-charge bail was very limited. In principle, Domestic Violence Protection Notices (DVPN) and Orders (DVPO), rolled out nationally in 2014, provide a more effective mechanism for protecting victims of domestic abuse than pre-charge bail. Data in respect of police action regarding domestic abuse generally, and in relation to DVPNs and DVPOs in particular, is unsatisfactory, but it appears that the number of DVPNs made and DVPOs applied for nationally is extremely low (see HMICFRS A progress report on the police response to domestic abuse (November 2017) and ONS Domestic abuse in England and Wales: year ending March 2018. We believe that DVPNs and DVPOs have greater potential for protecting victims of domestic abuse than pre-charge bail. Stalking Protection Orders (SPO) are also an available tool and the Statutory Guidance clearly sets out that, “[An] investigating officer should consider whether to apply for an order at the start of every stalking investigation, whether in a domestic abuse context (such as stalking by a former intimate partner) or a case of so called ‘stranger stalking’. This allows for protection to be in place even if the case results in an acquittal.”1Stalking Protection Orders, Statutory Guidance for the Police (Home Office, January 2020) para 14. SPOs can be applied as an ‘interim order’, a process designed to, ‘provide a speedier process to obtain an order where there is an immediate risk of harm…’.2Stalking Protection Orders, Statutory Guidance for the Police (Home Office, January 2020) para 27. Breach of an SPO (whether an interim order or a full order) is a criminal offence carrying a maximum sentence of five-years imprisonment.3Stalking Protection Act 2019 s8.
We have made Freedom of Information Act requests to try and establish the uptake and effectiveness of DVPN/DVPOs and SPOs, but at the time of this response we have only received a limited number of replies. From the responses we have, it would appear that there has been a cautious uptake of SPOs.4Although this may be a consequence of COVID-19 impact on the justice system. In contrast, DVPN/DVPOs are more established, with some forces making hundreds of applications a year. We are mindful not to draw any firm conclusions from an incomplete data set, but the ratio of DVPN/DVPOs in place against the number of orders breached is encouraging and ought to be properly reviewed before any material changes are made to the presumption against pre-charge bail.
The law on pre-charge bail was reformed by the Policing and Crime Act 2017 which introduced the following provisions:
a presumption against pre-charge bail unless it is judged to be ‘necessary and proportionate’;
a requirement that bail be authorised by an inspector or above, having considered any representations made by the suspect and/or their lawyer;
an initial maximum period of bail of 28 days (or three months in the case of certain more serious suspected offences);
power to extend bail to an overall period of three months by a superintendent or above (or six months in the case of certain more serious suspected offences, authorised by an assistant chief constable or equivalent);
power to extend bail to an overall period of six months (or nine months in the case of certain more serious suspected offences); but in most cases based only on the papers rather than an oral hearing.
The 2017 Act did not provide for any limit on the number of times that bail can be extended, nor for an overall limit on the period for which a person may be kept on pre-charge bail. Further, the 2017 Act did not make any changes regarding the power to impose, or review, bail conditions, nor regarding the consequences of breach of bail or bail conditions.
Whilst the stated intention behind the reforms was to reduce the use of pre-charge bail, and to reduce the time that suspects were kept on bail, the police response to the reforms confounded expectations. Whilst official statistics on pre-charge bail are problematic, it appears that there was an 84 per cent reduction in the number of persons placed on pre-charge bail between 2017/17 and 2017/18. Furthermore, in 2017/18 approximately 177,000 persons were released under investigation (RUI), that is, released without bail but still under investigation. Figures also suggest that, with the exception of the Metropolitan Police, persons are subjected to RUI for longer than those who are released on bail (figures cited in Home Office, Police Powers: Pre-charge Bail: Government consultation, issued 5 February 2020, Annex A).
Why have the police resorted to RUI as the norm? Contrary to some accounts, the police have always had the power to RUI and whilst the intention of the 2017 Act was, in effect, to encourage greater use of RUI, the Act did not introduce it. It is highly unlikely that the police are inappropriately inhibited by the requirement that bail be ‘necessary and proportionate’. PACE has always required that a person can only be detained at a police station following arrest if it is necessary for the purposes of investigation (PACE 1984 s37), and available evidence strongly suggests that since the introduction of PACE 1984, persons who are taken to a police station under arrest are routinely detained. In other words, the necessity requirement has not inhibited the police in detaining people for investigation. Furthermore, whilst there is an absence of robust evidence in this regard, it has frequently been reported that since the new regime was introduced, persons suspected of serious offences, such as murder and rape, have been released under investigation; that is, in circumstances in which the pre-charge bail thresholds are almost certainly satisfied. In determining necessity, the legislation requires the custody officer to have regard to all the circumstances, paying particular regard to bail conditions which would be imposed (PACE 1984 s50A). Taken together with the proportionality requirement, it is difficult to understand how the legislative requirements would prevent the imposition of bail (often, with conditions) where a person is suspected of a serious offence, an offence of violence, or in circumstances where there is a real risk of interference with the investigation or the course of justice.
Therefore, the dramatic increase in the use of RUI cannot be explained by either the introduction of the presumption of bail or the requirement that bail be necessary and proportionate. What other factors may explain the change in police behaviour? In his 2017 article, Professor Michael Zander concluded that the most likely explanation was that the police who are required to operate the new law (primarily investigating and custody officers) had ‘taken against this reform’ and are discounting what they had previously argued were the benefits of police bail in order to reduce workload and the scrutiny of the progress of investigations (Criminal Law and Justice Weekly, 7 October 2017). Whilst it is the case that the statutory pre-charge bail scheme is somewhat complex, the opportunity for investigation officers to avoid scrutiny of their investigations by a senior officer after 28 days, and the possible need to justify bail before a magistrates’ court after three months, must be attractive, especially given that police officers are working in the context of cuts of 20 per cent in police budgets over the past few years. RUI avoids such scrutiny, and also relieves the investigating officer of any obligation to keep either the suspect (or their lawyer) or the victim informed of the progress, or likely timescale, of the investigation. It is the experience of Mr Hardcastle and Ms Paul that the police will initially release an arrested suspect on bail, but then revert to a RUI as they approach the 28-day (or three-month) time limit. The National Police Chiefs’ Council has issued ‘suggested good practice’ providing for review of RUI cases every 30 days. However, this is a very weak form of ‘regulation’ (if it can be called that) and there is no evidence that it has had any impact on police conduct; nor is there any effective mechanism for a suspect to understand whether a review has taken place at all.
The police response to the regulation of pre-charge bail introduced by the 2017 Act, with greater use of RUI and lengthening investigations, has revealed the fundamental weakness in the regulatory regime. Whilst introducing a threshold for the use of pre-charge bail, and internal authorisation and external scrutiny, was important in dealing with the abuse of pre-charge bail, and the fact that thousands of people each year were subjected to it (a significant proportion of whom were never prosecuted), the statutory regime did not tackle the root problem – unnecessarily lengthy investigations without any form of external scrutiny. RUI provided the police with a mechanism for avoiding transparency and accountability, facilitating inefficient investigation, which has worked to the detriment of suspects and victims, and ultimately to justice itself.
The stated aim of the government is to ‘have a system which protects victims, enables the police to investigate crimes effectively and respects the rights of individuals under investigation’ (Home Secretary’s Foreword to the Consultation); it seeks to ensure that pre-charge bail is used appropriately, in order to protect victims and timely investigations. The Consultation contains three major proposals to further these aims: removing the presumption against pre-charge bail, accompanied by statutory factors to which police officers must have regard in making a decision regarding pre-charge bail; amending the various time-limits and the level of approval required for bail decisions; and introducing a non-statutory framework for the supervision of RUI and voluntary attendance (VA) cases. In addition, the Consultation seeks views on mechanisms for enforcing bail conditions.
In our view, the proposals do not address the fundamental causes of the inappropriate use of pre-charge bail and RUI, nor fully deal with the adverse consequences of the current regulatory regime. Since, as we believe, the use of RUI in cases in which pre-charge bail would be appropriate, is driven by a desire to avoid scrutiny and accountability in the context of pressure on police officers resulting from scarce resources, inappropriate pre-charge bail decisions will continue to be made for as long as RUI remains a more attractive alternative to bail. Non-statutory codes, which do not place limits on the length of investigations, and which do not provide for judicial, or any form of external, scrutiny are unlikely to have any significant impact on police decision-making, nor on the length of investigations.
Release under investigation for a lengthy period of time, with no opportunity for the person involved to challenge that investigation or the time that it is taking and, in particular, no opportunity to prompt judicial scrutiny of police decision-making, leaves the person (if anything) in a worse position than a person released on pre-charge bail, and causes great psychological and practical harm. In fact, inappropriately lengthy police investigations are the primary cause for concern, with significant impact on both suspected persons and victims, whether that person is on bail or released under investigation. See the real-life accounts of persons on pre-charge bail (referred to in E Cape, What if police bail was abolished?, Howard League for Penal Reform, 2015, pp8–9, available at https://howardleague.org/publications/what-if-police-bail-was-abolished/) and those released under investigation (the Law Society, Release under investigation, September 2019, pp4–5, available at https://www.lawsociety.org.uk/policy-campaigns/campaigns/criminal-justice/release-under-investigation/), which are very similar if not identical.
We recognise that investigations which are especially complex, or where there is an unusually large volume of material to collate and consider, will inevitably take a significant period of time. But, what is of concern is with the length of time it takes to progress ‘routine’ cases. In our view, the evidence suggests that the only effective mechanism for reducing the number of inappropriately lengthy police investigations is to introduce a statutory framework providing for internal and judicial scrutiny of decisions regarding the progress of investigations. This could mirror the current statutory regime governing pre-charge bail, in terms of time limits and authorisation. Whilst there is an argument that there should be an overall time-limit on investigations, such a regime could be introduced without an overall limit, in the same way that pre-charge bail is not subjected to an overall time-limit. This would address police concerns that some investigations, by their nature, are unpredictable and may take a long time. This would ensure that investigations are progressed in an efficient manner without imposing any absolute time limit.
Furthermore, the law could provide for an investigation to be re-instated if new evidence comes to light that was not available at the time that a decision was made to halt an investigation. Statutory regulation of this kind would, in the Home Secretary’s words, protect victims, enable the police to investigate crimes efficiently and respect the rights of individuals under investigation. It would also remove the incentives to use RUI rather than pre-charge bail inappropriately since a similar level of scrutiny and transparency would apply to both.
Proposal 1: Ending the presumption against pre-charge bail and requiring officers to have regard to statutory factors when considering whether pre-charge bail is necessary and proportionate
Q1 We strongly disagree with the proposal that the general presumption against pre-charge bail should be removed. Custody officers are familiar with the concept of such a presumption. In particular, by PACE 1984 s38, following charge, a custody officer must order the release of the person charged unless one or more of a number of factors is satisfied. In other words, there is a statutory presumption of bail (where custody is the alternative) which, in principle, is the same as a statutory presumption that a person be released without bail (where bail is the alternative). We are not aware of any evidence that supports the argument that removal of the presumption would improve decision-making regarding pre-charge bail. To the contrary, we believe that it would simply add confusion.
Qs2 and 3 We note that the wording of factors 1 and 3 assumes that the suspect has committed an offence. Leaving aside the question of whether a requirement to have regard to statutory factors is appropriate, this is objectionable since, by definition, at this stage it has not been established that there is sufficient evidence to charge, still less that an offence has been committed by the suspect. Further, factor 4 refers to the need to manage risks of ‘a suspect offending’. This is inappropriate and confusing since the decision to be made concerns the person who has been arrested and detained and the particular circumstances of the case. In a similar vein, the reference in factor 2 to ‘victims’ of crime suggests that the officer is being required to have regard to any victims of crime, without regard to the particular facts of the case. We do not object, in principle, to the proposal that the officer making a decision have regard to statutory factors, but we do not believe that framing of the factors in the Consultation is appropriate.
Q4 On page 7 it is stated that one of the four approaches considered was ‘a return to the use of bail for all cases following arrest’. This is incorrect in that it was never the case that all persons released without charge where an investigation was continuing were released on bail. There was no statutory requirement to this effect, and neither was it the case in practice.
Proposal 2: Legislation to amend the statutory framework governing pre-charge bail timescales and authorisation
Q5 We do not intend to rank the three models governing timescales and levels of authorisation since we do not agree with the underlying assumption that they would ‘remove disincentives against use of pre-charge bail whilst supporting timely progression of investigations’ (p11). As noted earlier, we believe that officers have been incentivised to use RUI rather than pre-charge bail because of the perceived advantages to them of less scrutiny, by their supervisors and/or by the courts, of the investigation. As also noted earlier, we do not believe that a non-statutory code governing RUI would significantly alter the balance of perceived advantage.
Q6 It is stated on page 10 that policing stakeholders have said that the initial 28-day time-limit has disincentivised the use of bail, especially in complex cases which are difficult to progress or conclude within that timeframe. Under the current regime, what is required at the 28-day stage is for the question of bail to be considered by a superintendent or above. We do not accept that this is a legitimate disincentive to the use of bail; all it requires is for the investigating officer to explain to a senior officer what has been done and remains to be done by way of investigation, and to satisfy him or her that continued bail is necessary and proportionate. We do not believe that this is inappropriately onerous.
We also note that the current regime already recognises that complex cases will require a lengthier investigation. While the initial limit is 28-days for all but SFO cases, where an investigation is designated as complex as defined in PACE (a ‘designated case’), the initial extension period is doubled from three-months to six-months. In our opinion, any suggestion that the bail regime is a hindrance in complex cases would be an untenable one.
We note that in all three models, it is proposed that the first extension be authorised by a police inspector. Although there is no contemporary evidence that we are aware of, past research evidence regarding reviews of detention by inspectors strongly suggests that authorisation at this level does not provide for robust consideration of the relevant factors. In the three proposed models, authorisation by an officer above the level of inspector is not required until four months (Model A) or six months (Models B and C) has elapsed. External scrutiny, by magistrates, would not be required until six, nine or twelve months has elapsed. In our view, whilst external scrutiny is desirable, under the current regime it is relatively minimal given that normally the decision is made without an oral hearing. Given the potential impact of bail, especially conditional bail, all of the proposed periods concerning external scrutiny are inadequate to protect the interests of persons subjected to bail.
We strongly believe that the current timescales and levels of authorisation should be retained.
Proposal 3: New framework for the supervision of RUI and VA cases
Q7 Whilst we strongly agree that there should be timescales for persons RUI and voluntary attendance cases, we believe that such timescales should apply to all investigations, and that they should be embodied in legislation.
Q8 On page 15 it is stated that prior to 2017, ‘all individuals released after arrest while investigations continued were released on pre-charge bail’. As noted earlier, this is not true, as a matter of law or practice.
As argued earlier, non-statutory timescales would not address the fundamental problem of unjustifiably lengthy investigations. We believe that the length of police investigations should be regulated by statute, mirroring the regime governing pre-charge bail. We note that the NPCC has sought to regulate RUI with a system of internal scrutiny, and despite the fact that this was issued in 2018, there is no evidence that it has had any positive impact in practice. In any amendment to the pre-charge bail / RUI regime there must be a provision that allows a suspect to receive meaningful and regular updates on the progression of the investigation.
Effectiveness of bail conditions
The current position is that a person who has been released on pre-charge bail can be arrested for failure to surrender and for suspected breach of conditions. Whilst failure to surrender without reasonable cause is an offence, breach of conditions is not.
In our view, making breach of conditions a criminal offence is fundamentally wrong. A person released on pre-charge bail will have been arrested. At most, in order to arrest a person, a police officer must have reasonable grounds to suspect the person of an offence, and reasonable grounds for believing that arrest is necessary. Case-law has determined that ‘reasonable grounds’ amounts to a very low threshold (see the cases referred to in Blackstone’s Criminal Practice 2020, sections D1.4 – 1.5). As noted earlier, the evidence suggests that up to half of those placed on pre-charge bail are subsequently not charged or proceeded against in any other way. Therefore, if breach of conditions is made an offence, a person may be criminalised even though they did not commit a substantive offence. This would almost certainly have a disproportionate effect on ethnic minorities. According to the latest official statistics, black people are over three times more likely to be arrested than white people. As a result, we would anticipate that if breach of conditions were to be made a criminal offence, this disproportionality would be reflected in the figures for those prosecuted for breach of conditions.
Similarly, even for those charged with offences, suspects are often arrested ‘high’ and charged ‘low’. At the point of arrest, the police might perceive a greater risk and impose stringent bail conditions. But, even when the overall assessment of the case changes, in our experience, the bail conditions are infrequently reduced.
Furthermore, as stated in the consultation paper (p18), whilst breach of conditions is not an offence, if an officer has grounds for suspecting the person on bail of a (new) substantive offence, they may be arrested for that offence and, if the evidence justifies it, can be charged in respect of that offence; and, if the conditions in PACE 1984 s38 are satisfied, be produced in court in custody with the breach of bail likely to be taken as an aggravating feature. In the case of suspected domestic violence, as noted earlier, the police may serve a DVPN and apply for a DVPO which, in our view, provides greater protection to the putative victim than a release on pre-charge bail.
DVPN’s can be applied quickly, they are designed for use while a suspect is in custody and are designed to last until a DVPO hearing can take place. While a DVPN requires the scrutiny of a senior officer – and a DVPO the scrutiny of the court – that should be seen as a positive to ensure that an infringement on liberty is being properly applied. The use of bail as an effective short-cut or way of achieving the same end with less oversight should be deprecated.
Q9 We strongly disagree with the suggestion that breach of conditions be made a criminal offence. In any event, the questions in Q9a, b, and c are far too widely drawn. They refer to preventing ‘someone’ interfering with victims, committing an offence, etc., as opposed to the person on bail.
1     Stalking Protection Orders, Statutory Guidance for the Police (Home Office, January 2020) para 14. »
2     Stalking Protection Orders, Statutory Guidance for the Police (Home Office, January 2020) para 27. »
3     Stalking Protection Act 2019 s8. »
4     Although this may be a consequence of COVID-19 impact on the justice system. »

About the author(s)

Description: Ed Cape - author
Ed Cape is Emeritus Professor of Criminal Law and Practice at the University of the West of England.
Description: Matthew Hardcastle - author
Matthew Hardcastle is an associate at Kingsley Napley.
Description: Sandra Paul - author
Sandra Paul is a partner at Kingsley Napley.