We are often instructed in large police or HMRC enquiries where a client is placed on police bail for a lengthy period of time. We most often encounter this in fraud cases, large tax enquiries or perhaps conspiracy cases where the investigators need to gather a great deal of information. What if a client fails to return to the police station on the specified date for further interview or perhaps charge?

Firstly, an officer cannot seek a remand into custody whilst enquiries into potential offences are on-going (although the position is different in terrorist cases). Police bail can be imposed where there is insufficient evidence to charge a suspect and he is released pending further investigation (ss. 37(2), 34(2) and 34(5) of the Police and Criminal Evidence Act 1984 (PACE)). Where it is no longer necessary to detain a suspect to secure or preserve evidence or obtain it by questioning and the police are not in a position to charge at that point, the suspect must be released. However, the police may release him 'on bail' where there is a need for further investigation. Where s. 37(2) PACE is cited, conditions of bail can be attached where necessary to prevent the suspect from failing to surrender, offending on bail, interfering with prosecution witnesses or otherwise obstructing the course of justice, or for his own protection. Section. 34 PACE is cited where, for example, a complex investigation is required and no assessment of the evidence can be made for some time. In those circumstances, no conditions of bail can be imposed - R (on an application by Torres) v Metropolitan Police Commissioner [2007] EWHC 3212. The Police and HMRC will sometimes cite s.37 where s.34 is appropriate and this can be challenged in suitable cases.

HOWEVER, a failure to surrender to police bail is an offence contrary to S6 Bail Act 1976 and can be separately prosecuted. The CPS don't normally advise in these terms where a lengthy investigation is on-going or there is a decision not to prosecute in the main case. They will sometimes advise a separate charge under the Bail Act if it is thought that a suspect is deliberately avoiding the police or there are doubts over the suspect's address. In those circumstances, the custody Sgt may keep a suspect in custody to be produced before the Magistrates court at the earliest opportunity (either later the same day or overnight to the Monday morning if necessary). The matter is dealt with like a contempt of court and carries a maximum period of 3 months in custody and/or a financial penalty if dealt with at the Magistrates Court. In serious cases, the Magistrates can commit the matter to the Crown Court for sentence, where the offence carries a maximum of 12 months in custody and/or a financial penalty. Section 6(3) affords a defence, in that 'It shall be for the accused to prove that he had reasonable cause for his failure to surrender to custody'. Establishing a reasonable cause is not simply a case of saying 'I forgot' or 'I was not given a copy of my bail notice'.

Clients sometimes decide not to turn up for their appointment at the police station, either because they feel they should not be subject to police bail or because they are fed up with the length of time it is taking to make a decision to charge or discontinue. This often happens where police bail dates are repeatedly postponed. A decision not to attend can be met by an officer who states - 'Failure to attend will result in us arresting your client and a remand application will be made'. What they really means is 'Failure to attend will result in an application for advice from the CPS on whether your client should be separately prosecuted with an offence contrary to section 6 Bail Act 1976'. The better course is to make an application to the custody Sgt or the Magistrates Court for a discharge of police bail or a discharge / variation of police bail conditions.

We have successfully applied for the discharge of police bail or the deletion / variation of onerous bail conditions in lengthy investigations, often on behalf of company directors who need to travel or live abroad during the course of the enquiry. This can involve arguing that s. 34 PACE is more appropriate (where bail conditions are not applied) or a submission that a client should simply be released from police bail altogether. This is quite separate from a decision not to charge in the main enquiry, although we sometimes make those submissions in conjunction with arguments on bail.

A small amount of Legal Aid is sometimes available for applications, but we find it is simply insufficient to deal properly with large investigations. We are therefore privately funded to deal with virtually all of our police bail issues. Funding through a Management Liability (D+O) policy or Legal Expenses Insurance is sometimes available. Failing that, we normally offer fixed fees for hearings and written submissions where a client is obliged to fund the matter directly.

Evan Wright is a partner in the business crime Department and defends in cases brought by the Police, HMRC, Serious Fraud Office, Department for Business Innovation and Skills and other prosecuting authorities. Please feel free to contact the team for a no obligation discussion if you feel we can assist with your case.