Since 2017 police bail has been governed by the Policing and Crime Act 2017. Bail refers to the temporary release of a person from police custody ‘in connection with proceedings for an offence or can be given to a person who is accused or convicted of an offence or who is under arrest for the offence’[1]. A distinction is therefore made with pre-charge bail and post-charge bail. Pre-charge bail allows for suspected individuals to be released from custody but under conditions, to allow officers further time to investigate the case.
In addition, you may be ‘released under investigation’ or RUI following the arrest and interview at a police station. This means that you have been released from custody without being charged or without a bail date to return to the station. Under the Policing and Crime Act 2017, there is a presumption of release without bail or being ‘RUI’. In other words, there is a presumption against pre-charge bail unless the individual case deems it ‘necessary and proportionate’ for bail to be implemented. Guidance for what constitutes ‘necessary and proportionate’ is set out in the National Police Chief’s Council which sets out its used in ‘high harm’ cases.
Although a strict time limit of 28 days is imposed on pre-charge bail, none exists for those released under investigation. This means that people can be left in ‘limbo’ without a time period for when an update will be received on this case. The current lack of time limits on those who are released under investigation (“RUI”) should be altered. Any interactions with police are stressful regardless of the cause for such interactions. Being released under investigation after an interview compounds this stress, as they are left without further instruction on what the next steps are or the time limit on when they will have further communication with the police, save that they will be contacted at some point in the future. Depending on the alleged nature of the crime the length of investigation will vary.
These issues have resulted in the Home Office recently responding to a consultation on pre-charge bail by setting out a proposed basis of reform for bail and the provisions governing those released under investigation. The proposed reform is to introduce a ‘neutral position’ and extension of 28 days to 3 months’ time limit for bail which will help combat the period of time that people are released under investigation as it will ease pressure. An extension may then be sought by application to the magistrates for up to a period of 12 months. Such reforms are encouraging but also reflect the legislative understanding of the position we now find ourselves in with pre-charge bail and those RUI due to the 2017 Act provisions. The 2017 act was introduced to try relieve the anxiety and stress of spending time on bail without clarity to the progression of their case. However, this has in fact exacerbated this issue forcing suspects to live without certainty for extended periods of time.
Comparatively, the RUI provisions for the police, can result in an increased workload. Depending on the work and resources of that station, the length of time can be considerable. During this prolonged period contact can be lost with the suspect both with the solicitor and geographically, through a change of address for the client. As one of the ways suspects are contacted is through postal requisition, this can result in increased delays and police resources having to be allocated to locate the suspects. Additionally, this has increased demand on legal advice services who have unanticipated work from those RUI for lengthy periods. With legal aid cuts already putting substantial pressure on legal services this additional and unnecessary burden adds to their work.
Perhaps more concerning is that RUI applies to those suspected of serious offences such as those of a sexual nature allowing them to remain in the public and causing potential distress for their victims. Comparatively, the procedure for bail allows for certain conditions to be implemented such as a curfew or electronic monitoring to provide some protection to such victims. Therefore, safety concerns arise from the current system of RUI. The Law Society’s report released in September 2019 on RUI and the problems it poses confirmed it was being used for individuals suspected of knife and robbery offences, rape and even murder after bail had expired.
A further caveat of the proposed reform therefore, is that it will provide greater protection for such victims due to a requirement of officers to obtain the views of the victims on pre-charge bail conditions. By working with the victims, officers can ensure their safeguarding concerns are addressed and reflected in the bail conditions proposed.
The reform for pre-charge bail are therefore welcomed, as it will provide a more proportionate and balanced approach in terms of extending pre-charge bail time limits. By eliminating the presumptions against pre-charge bail, brought in by the 2017 act, it is hoped that it will instead encourage its use only when it is proportionate to do so in those case with greater harm. This in turn may avoid the use of RUI in high harm cases where investigations may be carried out with the new extended time period for pre-charge bail. However, it still raises the question of when time limits will be implemented for those released under investigation, especially cases involving serious offences. Releasing suspects under investigation who are suspected of lesser offences may be appropriate to decrease the pressure and workload of the police force, but only in those less serious cases where individuals are assessed as being a low risk to the public. How the proposed reforms will work in progress is yet to be seen.
By Kellina Gannon
Criminal Paralegal
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[1] The Bail Act 1976 s.1(1)(a) and (b)
