Pre-charge bail: How did we get here – and where next?

Changes to pre-charge bail may not be the most eye-catching of various criminal justice reforms in the Police, Crime, Sentencing and Courts Bill, but the plan to return to a system under which suspects can languish on bail for months on end (often subject to highly restrictive conditions) has the potential to be one of the Bill’s most significant proposals.

The proposed bail changes are important for two reasons. The first is that, in my view, the changes challenge a fundamental rule of law. The second is they show how the Government is unable to recognise its own role in creating the problem it now seeks to solve.

Most criminal law practitioners will agree that the current system of pre-charge bail is a mess. It is worth asking: how did we get here – and what is the solution?

The 2017 legislative changes  

On announcing a 28-day time limit for police bail in December 2014, then Home Secretary Theresa May, said it “cannot be right that people can spend months or even years on pre-charge bail with no oversight”. On this discrete point, May and I agree. However, I was one of many legal practitioners to express concern at the time that for many the new system would only lead to intolerable delays.

The new legislation, which came into force in April 2017, introduced a presumption against pre-charge bail. This meant that, rather than be subject to onerous bail, most suspects would be released under investigation (RUI).

At first, many people working in the criminal justice system thought this was a positive step. I must acknowledge that, for some suspects, the relative freedom of being released under investigation is preferable to being on bail (which can involve onerous conditions).

But RUI has a crucial disadvantage for a suspect too: it does not oblige the police to conclude their investigation within a given timeframe. The entirely predictable result of this is that RUI has enabled thousands of criminal investigations to effectively grind to a halt.

As has been covered extensively in the media, RUI has led to suspects, complainants and witnesses being left in legal limbo for months, sometimes years, on end – while they await a charging decision.

Proposed new changes

The suggested reforms to be brought in by the Police, Crime, Sentencing and Courts Bill are:

• Removal of the presumption against pre-charge bail;
• Custody officers will be able to impose bail for an initial period of 3 months (currently 28 days);
• A police inspector can authorise an extension of bail to 6 months (currently a Superintendent’s authority is required to extend to 3 months);
• A Superintendent or above can authorise an extension of bail to 9 months (currently 3 months);
• Judicial oversight will only be required to extend bail at 9 months (currently 3 months).

These proposals are a move back towards the pre-2017 position. They will result in thousands more suspects being put on bail with conditions that will restrict their liberty, including restrictions on residence, who they can have contact with, and travel.

This may not appear unreasonable. But it is important to remember that these are people against whom the state does not have sufficient evidence to bring charges – many of whom who will never be charged or face trial.

If the system was unjust pre-2017, it is very hard to see how these latest changes will rectify it.

Is there a solution?

The government has described its latest changes as putting “victims of crime at the heart of police decision making and support the timely progression of investigations”. While most would agree that police investigations must be quicker, this will not happen without proper funding, training and oversight in all investigations.

In my view, the bail changes in the Police, Crime, Sentencing and Courts Bill risk undermining confidence in the criminal justice system. Without significant, sustained funding, the default position will be that suspects are released under investigation after 9 months (the first point there needs to be any judicial oversight) – rather than the existing 3-month pinch point. These changes would only kick the can down the road.

The legal limbo of the current RUI default position creates intolerable delays for those who complain of, and are suspected of, crime. The answer is not to increase police powers to impose bail, but instead to equip all investigators with the means to conduct their enquiries thoroughly and in a timely fashion. Only then will we have a pre-charge bail system that it fit for purpose. 

Peter Csemiczky is Partner at Hickman & Rose Solicitors: hickmanandrose.co.uk