Opposing an extension to pre-charge bail

Pre-charge police bail is crucial in preventing further offending and to provide protection to victims of crime. The police will extend the bail until the conclusion of the investigation, which could take months and for some years.

For some suspects, it can feel burdensome or unjust and there are situations where the imposition of pre-charge police bail is not necessary or proportionate but is onerous, overly restrictive, or even punitive.

This article explains the importance of understanding when pre-charge bail is unreasonable and when it is possible to oppose an extension to pre-charge bail,

In what circumstances would an extension to pre-charge bail be opposed?

Pre-charge bail conditions must be necessary and proportionate considering the suspect’s background and the nature & circumstances of the case.

A suspect being unhappy with the mere fact that they are subject to pre-charge bail will not in itself be sufficient for successful representations. There must be a solid argument and rationale to include within representations that the pre-charge bail/ bail condition(s) are unnecessary or disproportionate.

Certain conditions would normally always be deemed necessary. For example, where the victim is vulnerable, there is an allegation of violence, and the victim wants protection: it would be expected that there would be a condition preventing contact with the victim.

An example of when a condition would not be necessary or proportionate could be: a condition of residence at a particular address or reporting to a police station, where there is no history or information to support that the suspect would fail to surrender or that there is a risk of absconding. Or where a suspect’s personal circumstances (such as living or working a significant distance away) would cause significant hardship if they were required to surrender to police bail.

If the bail conditions appear unreasonable, onerous, or unworkable, legal advice should be sought, and representations served opposing the extension. This article provides information on when and how this could be achieved:

What is the process for opposing an extension to pre-charge bail?

Within the first 9 months of the investigation, the police will seek to extend the bail, normally every 3 months.

This is an opportunity for the suspect to submit written representations opposing the extension of the pre-charge bail. Section 3(8) of the Bail Act 1976, read with section 3A(4), allows bail conditions to be varied by the police following a request for variation by the suspect (or their legal representative). Representations should be submitted to the investigating officer two weeks prior to the extension date, to ensure the investigating officer sufficient time to discuss it with their Inspector or Superintendent. It would be a matter for the Inspector or Superintendent, to either agree to or reject the representations.

Once an investigation reaches the nine-month stage, police bail can only be extended by the Magistrates’ Court contrary to sections 47ZF – 47ZJ PACE and Criminal Procedure Rules Rule 14.19. In this instance, the police must provide the suspect or their legal representative with a copy of the Notice to Extend Bail, which sets out the reasons why an extension is required, an explanation for any delays in the investigation and why a further release on bail is necessary and proportionate. The suspect or their legal representative will complete a Response Form setting out why the application for an extension is opposed.

The Magistrates’ Court would normally consider the application without a hearing. But the suspect could request a hearing if: the investigation has been ongoing for more than 12 months or if the investigation has been ongoing for less than 12 months, but it is in the interests of justice for there to be a hearing.  

Is there anything a suspect could do if the police rejected representations before the 9-month stage, when the Magistrates Court would be involved?

A suspect could apply to the Magistrates’ Court to reconsider bail imposed by the police, contrary to Criminal Procedure Rule 14.6 and section 47 (1E) of PACE, the Magistrates have the power to vary the bail pre-charge bail conditions.

Is a person able to submit representations against pre-charge bail without waiting for the extension period?

You do not have to wait until the pre-charge bail extension date to make representations against bail conditions. Section 15(1) of the Bail Act 1976 and section 34(A) allow bail conditions to be varied by the police following a request for variation by the suspect or their legal representative.

This could be done at any point throughout the investigation and could be particularly relevant at the start of the investigation, where it is apparent that the conditions set by the custody officer are unnecessary or following a change in the suspect’s personal circumstances.

What happens if police bail is removed?

A suspect would return to being released under investigation. This means that as the investigation continues, there will be no bail conditions and no requirement to surrender to the police station on specific dates and times.  

Are there any reasons why a suspect should prefer police bail over being released under investigation?

Provided the bail conditions are necessary and are not causing any difficulties for a suspect, advice would be to remain subject to police bail. This is because whilst subject to police bail, the officer will be required to abide by specific timescales.

At the point of each extension of police bail, the investigator’s inspector is likely to be the person to provide the extension authority and in doing so is required to consider whether: the investigation is being conducted diligently and expeditiously; hold the investigating officer to account; manage person form issues.

Being released under investigation means the officer will not be working towards any timetable and there is a risk that the investigation could go on for longer.

How can Olliers help?

We have skilled and experienced lawyers who will be able to take your detailed instructions and advise you on whether the police bail ought to be opposed and whether the bail conditions are unnecessary or disproportionate. We will engage with the police on your behalf and draft representations.

If you would like to discuss how Olliers’ team of specialist pre-charge lawyers can assist you, please contact our new enquiry team by telephone at 0161 834 1515 (Manchester), 020 3883 6790 (London) or via email at info@olliers.com or complete the form below to arrange a confidential discussion.