Changes to pre-charge bail came into force on the 3 April 2017. Pre-charge bail is now set at an initial 28 day limit, previously there had been no limit.
These changes are part of a number of provisions being brought into force in stages by the Policing and Crime Act 2017 (PCA 2017) which received royal assent on the 31st January 2017.
Details
Pre-charge bail is when a suspect under investigation for a crime is released from custody, potentially subject to conditions, while the police continue their enquiries. They are required to return to the police station to ‘answer’ bail at a certain time and date.
Post-charge bail is when a person is charged with an offence and the police release the person on bail to appear at court at a future date. They may also impose bail conditions.
A number of the changes will affect children, they include:
Pre-charge bail
There is now a presumption of release without bail while a police investigation continues unless the pre-conditions for bail are met.
The pre –conditions of bail are:
(a)that the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and
(b)that an officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person or the person’s legal representative). (s58 Police and Crime Act 2017)
Pre-charge bail is initially limited at 28 days, with one extension of up to three months able to be authorised by a senior police officer in complex cases. In exceptional circumstances, the police will have to apply to a magistrate for further bail.
Other provisions in force include:
- stopping the detention in police cells of children and young people under 18 who are experiencing a mental health crisis (and restrict the circumstances when adults can be taken to police stations) by reforming police powers under sections 135 and 136 of the Mental Health Act 1983
- amendments to the Police and Criminal Evidence Act 1984, including to ensure that 17-year-olds who are detained in police custody are treated as children for all purposes, and to increase the use of video link technology (section 74)
- better protection for children and young people from sexual exploitation by ensuring that relevant offences in the Sexual Offences Act 2003 cover the live streaming of images of child sex abuse
See the Home Office press release here.
Commentary
The changes to pre-charge bail come after increasing public concern at people being held on lengthy police bail for many months while crimes were investigated. The new system aims to change this but there is still concern at how ‘release without bail’ will work in practice and particularly how it will work in regard to children. The availability of ‘release without bail’ may do little to address concerns about lengthy police investigations.
The changes will mean that less children will be on police bail with restrictive conditions however when pre-charge bail is considered, the lack of guidance on how to interpret when it is ‘necessary and proportionate’ could also prove problematic.
The changes make no distinction for children and there is a risk that children released without bail will end up being ‘investigated’ for long periods with no certainty of when the investigation will conclude. Additionally a person can be re-arrested if, since the person’s release, new evidence has come to light or an examination or analysis of existing evidence has been made which could not reasonably have been made before the person’s release. [Section 65 PCA 2017]