Pre-charge bail vs RUI: the Police, Crime, Sentencing and Courts Act 2022

The issue of police (pre-charge) bail and its alternative, Release Under Investigation (RUI), has been much debated over recent years.

Concerns about the system’s fairness and functionality have led the government to repeatedly tweak the law in this area. But the changes have been met with criticism and have led to a confused situation in which some of even the most experienced criminal defence solicitors are bewildered by the law.

Six months after the Police, Crime, Sentencing and Courts Act 2022 was introduced, with the police having since implemented the first extensions under the new legislation, this is an appropriate moment to consider whether it is now fit for purpose.

Release under investigation vs pre-charge bail

All practising criminal defence solicitors will be familiar with RUI, which was introduced under the Policing and Crime Act 2017, as an alternative to pre-charge bail.

The bail and RUI systems have the same purpose - to allow the police to continue their investigations while they are unable to make a charging decision. Yet they differ in several notable ways.

An individual who is granted pre-charge bail is given a date on which they must return to the police station. They may also be given conditions (such as an obligation not to contact a particular person or not attend a particular location). A suspect can be arrested if they breach their conditions and a breach can adversely impact their chance of obtaining bail in any future proceedings. Bail periods are set, which the police must apply to extend if they have not completed their investigation within the relevant time period and wish for the suspect to remain on bail.

When someone is released under investigation there is no fixed date to return to the police station and there can be no bail conditions. The ‘open-ended’ nature of RUI means there is little oversight into how long an investigation is taking.

Until the introduction of the recent October 2022 changes, the police operated under the rebuttable presumption that a criminal suspect would be released under investigation rather than granted bail.

This proved controversial. Many commentators (including my colleague, Hickman & Rose’s Head of Serious, General Crime Jenny Wiltshire and the Law Society) argued that the increased use of RUI led to suspects being kept in ‘legal limbo’ for much longer as police took advantage of the status’s open-ended nature.

These concerns and others led the government to launch a consultation into the system, which in turn prompted the recent changes under the Police, Crime, Sentencing and Courts Act 2022.

The current system

One of the most significant changes in the the current system is that the presumption in favour of RUI has been removed. The starting position in terms of whether someone should be bailed or RUI is now neutral and the police are obliged to release a suspect on bail (rather than under investigation) if they are satisfied that it is necessary and proportionate to do so.

The post-October 2022 system also introduces some clarity to a process that was previously somewhat opaque. In deciding whether someone should be released on bail, the police should consider a series of issues. These include: the need to secure that the person surrenders to custody; the need to prevent offending by the person; the need to safeguard victims of crime and witnesses; the need to safeguard the person; and the need to manage risks to the public.

Any one of the above issues is open to challenge. But criminal defence representatives should be aware of the full potential impact of the hoped-for status on their client.

The potentially reduced stigma of being released under investigation (compared to being on police bail) means that a client’s expressed preference may be to be RUI. The new statutory guidance states that investigations conducted with someone RUI should be conducted as expeditiously as those released on bail. However, in practice, the open-ended nature of RUI and potential lack of supervision from more senior officers may cause RUI cases to drag longer than they otherwise would if the suspect had been on bail.

The new statutory guidance contains the same provisions as before about the police providing an expected finish date and updates to suspects every 30 days. However, as was previously the case, this is routinely ignored by the police and there is no way of forcing them to follow the guidance. It is also not uncommon for suspects to be RUI after spending lengthy periods of time on police bail.

Bail time limits

Bail time limits are now extended significantly and the police can now bail a suspect for far longer than previously. Furthermore, the seniority of the police officer who can authorise bail has changed. More junior officers can now authorise bail. They thus have greater freedom to determine bail extension applications, with less oversight, than previously.

Legal representatives will also form their own views on whether time limits will lead to swifter justice and better police decision-making on bail issues.

What about the views of the alleged victim?

It has long been the case that lawyers for criminal suspects can make representations as to whether an individual should be released from custody or have their bail conditions altered.

Now, the police must also (when reasonably practicable) seek the views of the alleged victim or their legal representative. This also applies if the police are requested to vary or extend any existing bail conditions.

Many criminal defence solicitors will have encountered police officers who ignore their statutory obligation to ask a suspect or their lawyer for any representations in relation to bail.

This being the case, it seems likely that their new obligation to seek the views of alleged victims will lead to the consideration of defence representations slipping even further down the list of police officers’ priorities.

Is this the last spin of the bail reform merry-go-round?

In February 2020 my colleague Jenny Wiltshire argued against the government’s proposal to extend the amount of time that a person could be kept on pre-charge bail.

She told The Times newspaper that the then Home Secretary Priti Patel’s plans to do so would: “effectively make the pre-charge bail system just as free from external oversight as RUI, with the result that very little changes.”

While the introduction of defined criteria relevant to the decision-making will help defence solicitors advise their client about whether they are likely to be successful in challenging police bail applications, this is unlikely to have much material effect on the police’s decision making process.

The recent changes to the bail system make it likely that more people will be granted bail (as against RUI); and they will be kept on bail for much longer. Anecdotally, this is indeed what seems to be happening.

In that respect, the recent changes may be characterised as little more than rearranging the deck chairs on the Titanic. Meanwhile, fundamental problems remain outstanding, namely the amount of time that it takes for the police to complete their investigations (particularly where they need to download and consider electronic evidence) and a general police culture of not wanting to engage properly with defence lawyers during investigations.

The most recent changes notwithstanding, criminal suspects are likely to remain of secondary importance while police investigations proceed at glacial speeds and police culture remains unchanged.

Bartholomew Dalton is an associate in Hickman & Rose’s Serious and General Crime team. He is co-author of Blackstone’s Magistrates’ Court Handbook 2023, published by Oxford University Press.