Q: What is “pre-charge bail”?
A: Pre-charge bail is used when someone is arrested but not yet charged. If a custody officer becomes aware that there are no grounds to justify the continued detention of a person, then that person should be immediately released.
Pre-charge bail allows police to release a person while investigations continue, instead of keeping them in custody. Investigations may include gathering evidence, such as CCTV, forensics or witness statements. It cannot be imposed where a person has only taken part in a voluntary attendance interview and not been arrested.
The Police, Crime, Sentencing and Courts Act 2022 (“PCSC”) removed any presumption against pre-charge bail, and set a neutral position to encourage police to use it only where justified as necessary and proportionate in all the circumstances of the case. The statutory guidance for pre-charge bail falls under the Police and Criminal Evidence Act 1984.
Q: What are the possible types of pre-charge bail?
A: There are two possibilities:
- Pre-charge bail without conditions (“unconditional bail”): a person is released and has to return at a specified time and place (such as a police station), this is known as a bailed to return date (“BTR”).
- Pre-charge bail with conditions (“conditional bail”): a person is notified of a BTR date with additional conditions on them (such as not contacting certain people or going to specified places, or a curfew).
Q: Do the police have any other option to pre-charge bail?
A: Yes, an alternative way to deal with a person under suspicion who is not charged, is for them to be released under investigation (“RUI”) with no bail or conditions. No legal framework governs the use of RUI.
People who are RUI have no conditions or controls applied to them in relation to the investigation. However, it is important that their legal representatives can expect to be regularly updated regarding progress of the investigation. Guidance states that police forces should provide an indication of the likely update intervals in writing or on any notice given to a person at the time of release.
Q: When will the police use pre-charge bail rather than RUI or continue detention?
A: If there are “reasonable grounds” to suspect a person committed an offence, but there’s not yet enough evidence to charge them, the police may use pre-charge bail, provided it is “necessary and proportionate” in the circumstances. Pre-charge bail provides a specific date and time on which the person must surrender to custody, as well as a power of arrest should they fail to do so.
Q: What factors are considered when deciding if bail (with or without conditions) is appropriate?
A: The police must consider (and record their decision-making process):
- if bail is necessary and proportionate in all the circumstances;
- representation from the person who is suspected, or from their legal representative;
- whether a person might fail to return to custody;
- whether a person might commit further offences; and
- safeguarding risks to complainants or witnesses;
- safeguarding risks to the person under suspicion, where vulnerabilities have been identified; and
- the management of risk to the public.
Q: Are there any conditions that cannot be imposed on pre-charge bail?
A: Yes, the following cannot be imposed:
- for a person to reside at a bail hostel;
- for a person to attend an interview with a legal representative;
- to make a person available for enquiries and reports; and/or
- to apply electronic monitoring requirements on a person.
Q: What happens if a person fails to answer bail?
A: Breaching a bail to return date (failing to report at the police station at the appointed time) is an offence, and the person may be re-arrested.
Q: What happens if a person breaches bail conditions?
A: Breaching bail conditions (failing to comply with any conditions that are attached to the bail) is not an offence, but in such circumstances, the police have a power of arrest in order to bring that person back into police custody.
Q: How long does pre-charge bail last?
A: The applicable bail period (“ABP”) is three months in standard cases. However, depending on the case, it may be extended to six months or further up to 12 months and beyond, where investigations are continuing in complex cases. From 12 months onwards, a magistrate must decide if extension is justified. The same factors set out above are considered when deciding whether to extend bail, and in most cases, a risk assessment will be informed by the view of any complainant.
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Kathryn Maintzer is a paralegal in our Crime Department.
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