Bail Reforms: An end to the presumption against bail

4th February 2021 Business Crime

The Government have recently announced proposed legislative changes to the current pre-charge bail regime, introduced by the Police and Criminal Evidence Act 1984 (PACE) and amended by the Policing and Crime Act 2017.

At present, following an arrest a person may be released on pre-charge bail or released under investigation. Whilst there are limits to the amount of time that a person may be placed on pre-charge bail, no such limits exist in respect of suspects released under investigation. The result of this is that suspects often find themselves under investigation for extended periods of time. The proposed changes aim to address this issue and reduce the amount of time that suspects spend awaiting a charging decision.

Previous regime

Under PACE there was no legal limit on the amount of time that a suspect could be released on pre-charge bail for. The result of this was that suspects could be bound by restrictive conditions for years whilst the police investigated the matter.

On 3 April 2017 the Policing and Crime Act 2017 came into force, bringing with it major changes to the bail regime. The new legislation introduced a presumption against releasing suspects on pre-charge bail. Under the current legislation, bail can only be imposed if the custody officer is satisfied that bail is necessary and proportionate, and the decision has to be authorised by an officer of the rank of inspector or above. The legislation allows for an extension of up to three months if authorised by a superintendent. Bail can also be extended, up to a maximum of 12 months from the date that the suspect is first arrested, with the authorisation of the Court. Throughout this process the suspect is entitled to make representations concerning the extension of their pre-charge bail.

Criticisms of the 2017 reforms

The 2017 reforms were well received by many as they ensure suspects are not placed on conditional bail for significant periods of time. The changes have not however been without criticism. The practical effect of the reforms is that in many cases, rather than being released on bail, suspects are simply released under investigation for unreasonable periods of time. Furthermore, the lack of time limits and constraints placed on the police often results in longer investigation times. This causes uncertainty for both suspects and victims, and places a greater strain on the Court system, which continues to be overstretched. Many within the criminal justice system have therefore welcomed the review of the 2017 regime.

The changes

In a response to a consultation on pre-charge bail, the Home Office have acknowledged that the 2017 reforms have had ‘a number of knock-on effects’ within the criminal justice system. As such, the Home Office has confirmed its intention to introduce legislation advancing a more ‘neutral position’, namely that there will be neither a presumption for or against the imposition of pre-charge bail. The bail periods set by the 2017 reforms will also be amended: the initial bail period will increase to three months, the decision to extend the initial period will need to be made by an inspector, any further extensions will need to be approved by a superintendent, and any extensions beyond nine months will need to be authorised by the Magistrates Court.

It is hoped that the new reforms will result in a reduction in the number of individuals released under investigation for extended periods of time. The proposals have however given rise to some further concerns. The Law Society’s head of justice, Richard Miller, has expressed that whilst it is right to assess the 2017 changes ‘we must avoid throwing out the baby with the bathwater.’ Similarly the Law Society president, David Greene, has warned that the police ‘must not fall back into the bad habits of the past and routinely put suspects on bail for extended periods.’

Whilst the specifics of the legislation are yet to be disclosed, the changes proposed appear to strike a good balance between the pre and post 2017 bail regimes. The amendments will hopefully reduce the amount of time that suspects spend awaiting a charging decision, whether that be on conditional bail, unconditional bail, or without bail. This in turn should result in a greater degree of certainty for both suspects and victims, and reduce the pressures currently placed on the Court system.

If you have been arrested and are awaiting a charging decision and would like advice regarding your bail status, please get in contact with one of the members of our Business Crime team on 0345 241 5305. The author of this blog, Sadie Thomson, is a solicitor in our Manchester office and can be contacted at Sadie.thomson@jmw.co.uk.

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Sadie Thomson is a Solicitor located in Manchester in our Business Crime & Regulation department

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