The National Police Chiefs Counsel has released updated operational guidance reinforcing pre-charge bail as a legitimate tool in investigating crime and protecting the public following a decrease its use since 2017.
The NPCC states the following:
Legislative changes to pre-charge bail through the Policing and Crime Act 2017 introduced the presumption that suspects should be released from police detention while remaining under investigation, known as ‘released under investigation’, unless bail is deemed both necessary and proportionate. The Act also introduced statutory time limits and judicial oversight of extensions of bail beyond three months.
Concern that pre-charge bail has fallen considerably, including in domestic abuse, sexual offences and cases involving vulnerable people, has prompted the new guidance.
Her Majesty’s Inspectorate of Constabulary and Fire Services (HMICFRS) reviewed use of bail and found in the six months following the new legislation, use of bail fell by 75 percent and 65 per cent in domestic abuse cases. In December 2018, the number of defendants remanded on bail by the police prior to appearing at court decreased by 24 per cent, while the number remanded in custody decreased by seven per cent. The rate of those remanded in custody for the most serious (indictable offences) has remained broadly stable throughout these changes.
The guidance states investigators ‘should aim to finalise investigations during the first period of detention wherever possible’ as this ‘allows a more expedient investigation. However, it is recognised that often this may not be practical due to the nature of the crimes we investigate and investigators will often find it is necessary to arrest the suspect at a much earlier stage in the investigation.’
The consideration of whether or not to apply bail must take into account all the circumstances of a case, including the necessity to support and protect victims and witnesses, and ensure public safety. Decisions should be made by investigating officers, custody officers, and supervising officers. The guidance makes clear the circumstances in which pre-charge bail should be used:
- If there is a risk of a suspect committing further offences or failing to surrender to custody;
- The suspect being a threat to the public;
- The suspect interfering with an investigation or witness;
- Or for their own protection (if they are vulnerable).
If a suspect has been arrested in connection with an offence involving vulnerable people or domestic abuse then serious consideration must be given to the use of bail with conditions in order to safeguard victims. If pre-charge bail is not used, officers should document their decision making. Victims and witnesses should be informed that a suspect has been released under investigation and given advice about what to do if they are targeted by the suspect. The guidance encourages officers to seek counsel from senior colleagues in these cases.
The police can authorise three main applicable bail periods:
- Initial applicable bail period for 28 days authorised by an inspector.
- Extension to the initial applicable bail to three calendar months from the bail start date authorised by a superintendent.
- Further extension to the applicable bail period of three calendar months for cases designated as being exceptionally complex, authorised by an assistant chief constable or commander.
All further extensions to the applicable bail period have to be authorised by a magistrates’ court and when authorising bail, the suspect and/or legal representative must be allowed to make representations.
The guidance includes advice on using Postal Charge and Requisitions, which instruct suspects to attend a specific court, to address challenges in serving these requisitions resulting in suspects failing to appear at court.
The guidance directs officers to conduct their investigations expeditiously in cases where suspects have been released under investigation as well as ensuring a thorough investigation plan, and estimated end date for their enquiries. Custody officers should warn individuals released under investigation against witness intimidation, perverting the course of justice or harassment making clear they will be liable to further arrest should they engage in any of these, or other crimes.