New bail arrangements under the Policing and Crime Act 2017

Past pre-charge bail arrangements have been less than satisfactory. Often a suspect has been placed on bail for months, even years, with no charge, left in a sort of legal limbo. Onerous conditions have been imposed, restricting liberty and adding to the emotional and mental stress of the situation. Clearly the police need time to investigate and to collect evidence, and there may be a risk that the suspect will ‘disappear’, but there must be checks and balances: citizens must be safeguarded from abuse. Theresa May, when home secretary, resolved to make changes, and her successor, Amber Rudd, has taken up the task. The aim is that fewer people will be on bail and for a shorter period.

Accordingly, chapter 1 of part 4 of the Policing and Crime Act 2017, amending the Police and Criminal Evidence Act 1984 (PACE), seeks to reform pre-charge bail to stop people remaining on bail for lengthy periods without independent judicial scrutiny of its continued necessity. To strengthen the position of the suspect under investigation, the Act raises the presumption that there will be no bail unless it is necessary and proportionate, authorised by an inspector or above, and pre-charge bail is limited to up to 28 days, or extendable up to three months where authorised by a superintendent, or more than three months with judicial authorisation. A decision by a single justice of the peace on the papers will suffice. In exceptionally complex cases dealt with by the Serious Fraud Office (SFO), the central casework units of the Crown Prosecution Service (CPS), and the Financial Conduct Authority (FCA), it will be possible to extend bail administratively to a total of six months before seeking judicial authorisation. Legal representatives must be informed and all representations must be considered.

The bail decision must be made by an inspector or above (not just a custody sergeant or an ordinary police officer as hitherto) to avoid the casual or complacent exercise of the power. This will place an extra burden upon the police, but should ensure a greater degree of sound decision making and accountability. Her Majesty’s Inspectorate of Constabulary (HMIC) will report on the effectiveness and efficiency of the new arrangements, especially the operation of the new 28-day rule.

Some objectors felt that the previous limit of around 50 days was more reasonable for the police and the criminal justice system. The police investigation will need to be diligent and expeditious. Delays are sometimes beyond their control – for example, if the key witness from whom a statement is required is elusive, the DNA or blood analysis takes time, the expert witness report is delayed, or the CPS is slow in giving advice.

Conditions of bail

Conditions may be imposed, but they must be necessary and proportionate. If the conditions are breached the citizen may be re-arrested, although the breach will not in itself be an offence.

In terrorism cases bail might seem unlikely, though bail may be granted subject to travel restrictions preventing departure from the jurisdiction, in which case a breach will be an offence. Information about bail in terrorism cases must be shared with the other agencies, such as the SFO, the National Crime Agency (NCA), and the FCA.

Notification of decision

The failure on the part of the police and the CPS to notify the citizen when the decision is made to conclude the investigation and not to prosecute has led to distress and injustice. The existing statutory duty has been strengthened, and the notification must be made promptly and in writing. If there is insufficient evidence and no realistic prospect of conviction, the police and the CPS must not proceed, according to the Code for Crown Prosecutors, issued in January 2013 by the director of public prosecutions, under section 10 of the Prosecution of Offences Act 1985. The public interest must always be taken into account where appropriate.

Cross-border enforcement in the UK

Because there are three different criminal law jurisdictions in the UK, a breach of any travel conditions will be deemed to have been committed within the jurisdiction of the court dealing with the matter, even if the breach took place in one of the other UK jurisdictions (under section 137 and schedule 7 of the Criminal Justice and Public Order Act 1994).

Unintelligible law

One might have thought that for the benefit of the citizen, the legal profession, and the police, the law relating to the granting of bail would be simple, straightforward. and intelligible. The new law, while a very comprehensive and detailed series of amendments to PACE, is totally unintelligible, and will remain so until a clean copy of PACE, as amended, and guidance from the Home Office, the law publishers, and perhaps the Police College becomes available, hopefully in good time before the new law is brought into force.

Alec Samuels is a barrister and former reader at Southampton University