In March 2023, The College of Policing published its Statutory Guidance on Pre-charge bail pursuant to Section 50B (5) of the Police and Criminal Evidence Act 1984 ("PACE").
The Guidance is attractively set out in a logical order. It is helpful reading for practitioners seeking to navigate the increasingly complex statutory Police Bail (or Pre-Charge Bail) regime.
The Guidance is particularly helpful in illustrating the new Applicable Bail Periods ("ABPs"). Calculating ABPs can be complex when the case file has been sent to the CPS and returned to the Police for further investigation. This can become particularly relevant when making representations to the Magistrates Court.
The utility of the Guidance for practitioners may be in highlighting defective decisions as to whether it is necessary or proportionate for a suspect to be released on Pre-Charge Bail (and any conditions), rather than releasing the suspect under investigation ("RUI"). This may particularly be the case at ABP milestones such as the review at the first 3 months following arrest.
As there is a requirement for the Police to seek defence representations prior to imposing Police Bail and at the end of each ABP period, defence lawyers should be familiar with the document.
This document has some utility for defence practitioners when making representations regarding the imposition of pre-charge bail, or at the end of ABP periods. Many Pre-Charge Bail decisions are made based upon assumptions as to what the law is. It is particularly important that we make robust representations regarding pre-charge bail in the case of child clients. The Guidance helpfully sets out the law and relevant considerations and can be used to bolster representations.
However, it seems that the Guidance is rather detached from the reality of most Pre-Charge Bail decisions. Some paragraphs anticipate a level of Police expedition rarely seen in reality. For example Paragraphs 12.12 - 12.14 relate to:
"diligent and expeditious investigations" and suggest "Regular progress against an investigative plan should be shown and investigations should not drift. If there are actions to be taken to finalise the case and obtain a charging decision, these should be conducted as soon as reasonably practicable, not left until the end of the bail period."
Practitioners may be surprised to read that:
"Once a suspect has been released, investigations should have a documented supervisory review at least every 30 days until the investigation has been completed and a disposal actioned."
"At each review and at the end of the investigation, the supervisor must ensure that the investigator has updated the victim, the suspect and their legal representative (where applicable)".
Whilst these are laudable principles, they are at odds with the conduct of the vast majority of Police investigations. Huge delays are still common and particularly problematic in the case of child suspects, who are not only at risk of having a key stage of their personal development damaged by a lengthy police investigation but also often due to cross a critical age threshold affecting how the Courts will subsequently treat them if charged.
There are various questionable sections of the guidance, for instance, the Pre-Charge Bail regime (as amended by the Police, Crime, Sentencing and Courts Act 2022) is supposed to reflect a neutral position on whether Pre-Charge Bail is imposed, based on objective circumstances. Yet, Paragraph 13.3 purports to suggest that Pre-Charge Bail should be imposed unless there is a reason not to do so: "RUI should only be used in circumstances where the pre-conditions for bail are not met and there is little, or no, risk identified." This would appear to drive a coach and horses through the statutory test of necessity and proportionality for Pre-Charge Bail, which the Guidance covers at paragraphs 6.1 – 6.8 and suggest that Pre-Charge Bail should be the default position.
Unhelpfully, there is no guidance on the procedure for challenging Police Bail conditions in the Magistrates Courts. This is a missed opportunity as these applications are made all too frequently as a result of indefensible decisions relating to Police Bail conditions.
For years, Police Officers have made inconsistent and arbitrary decisions in relation to Pre-Charge Bail. This Guidance document was an opportunity to provide consistent decision-making grounded on a clear understanding of the legislation. Instead, the Guidance appears to reflect a presumption that Pre-Charge Bail should be imposed which is at odds with the legislation that it is supposed to explain.
Mishcon de Reya LLP
 Paragraph 13.11