The Home Office published their response to the ‘Police Powers: Pre-charge Bail’ consultation paper in the form of a post-consultation report on 14th January 2021. There were impressive levels of engagement with the consultation process and the numerous failings of the current legal framework, with its heavy reliance on the practice of release under investigation (RUI), were exposed and critiqued. In their response the Government acknowledge the failings of the regime introduced by the Policing and Crime Act 2017 and the need for change.
Background to the report
An individual who has been arrested by the police may be released on pre-charge bail (with or without conditions) pending the outcome of ongoing police investigations. The government introduced the Policing and Crime Act in 2017 to address concerns that people were being kept on pre-charge bail for lengthy periods. The legislation included a presumption against using pre-charge bail unless it could be justified as necessary and proportionate. It also established clear statutory timescales and processes for both the initial imposition of pre-charge bail and extension provisions. Use of pre-charge bail has dramatically fallen since this reform. Consequently, increasing numbers of individuals are being ‘released under investigation’ (‘RUI’) causing the government to be concerned bail is not currently being used for suspects of crime as often as it ought to be. Further, the number of people on bail and RUI appears to have increased since 2017. The consultation paper was part of a Government review to determine whether pre-charge bail is being used appropriately or whether the introduction of the 2017 provisions has had undesirable and unintended consequences. The report includes details of the Government’s proposed changes and public responses to them.
Changes the government plans to introduce
1: Removal of the presumption against pre-charge bail
Rather than a presumption against pre-charge bail, the proposed legislation would require pre-charge bail where it is ‘necessary and proportionate’. The government has not yet announced how they will incorporate the need to consider risk factors when making decisions about pre-charge bail into the framework, but they say that their conclusion will place an emphasis on ‘the protection of victims, witnesses, and the suspect themselves’.
2: Changing the pre-charge bail timescales and authorisations
The current Consultation puts forward three potential new models, each of which increased the timescales applicable to pre-charge bail and lowered the level of authorisation needed to grant or extend bail. On combined first and second preferences, ‘Model B’ was the most desirable option, though it should be noted that members of the public who had been under investigation preferred the current model and lawyers had equal preference for models A and B. The government intends to put Model B on a statutory footing, on the basis of the responses and that ‘the majority of police investigations require longer than the existing applicable bail period of 28 days’, and ‘it is unwise to overburden Superintendents with bail approvals’.
3: No timescales introduced into RUI process
The government has decided not to introduce timescales to RUIs because they expect the use of RUIs to decline following the removal of the presumption against pre-charge bail. This is despite the fact that the majority of respondents approved of the introduction of timescales for RUIs, partly on the basis that it allows suspects and defence solicitors to plan. It is also in spite of the fact that the Home Office agreed that ‘RUI is an unsatisfactory process which does not provide the necessary level of accountability’
4: No change to the consequences of breaching pre-charge bail conditions
Despite the ‘strong support for strengthening the consequences for breaches of pre-charge bail conditions’, the government does not think this would be a workable legislative option.
Other conclusions and next steps
The government states that it ‘is committed to learning lessons from the implementation of the 2017 reforms’ and will work to ensure implementation of any new reform is completed in conjunction with adequate training and guidance.
The legislative changes outlined above will be brought as a Bill before parliament ‘at the earliest opportunity’ in 2021.
Increased use of pre-charge bail will mean greater restrictions on liberty for children under investigation; they will be more likely to be placed on restrictive bail conditions and required to return to the police station more often. However, there is arguably more certainty and protection for child suspects in a system which favours the use of bail, a legally regulated process. The legislative changes are likely to extend the time frames involved. Whilst this will mean that some children will face longer periods subject to bail conditions, it will also mean that those children who do have to return to the police station for a bail to return appointment will have to do so less frequently than under the 2017 regime. Indeed, the time frames dictated by the pre-charge bail regime may often be less stressful for children. The RUI system, with its lack of timescales and regulation, has led to a situation in which police investigations hang over individuals for lengthy and indefinite periods without any option to challenge or clarify their position, which is clearly a source of anxiety for many young people.
However, concerns remain as to whether the proposed changes will significantly improve the experience of children and young people under police investigation. Anthea Hucklesbury, professor of criminal justice at The University of Birmingham considers these proposals insufficiently comprehensive and unlikely to lead to a sufficiently improved, transparent and legitimate process. Hucklesbury stresses that both pre-charge bail and RUI should be used for the minimum period possible. However, she emphasises that this can only be achieved by major change, in particular through the provision of extra resources to the investigation process. Since the Home Office proposals do not address such underlying causal problems she calls them ‘no more than a sticking plaster’ which ‘create as many problems as they solve.’