Released subject to pre-charge police bail 

What is pre-charge police bail?

Pre-charge bail is a tool whereby an individual who has been arrested and detained in police custody can then be released from custody to allow the police investigation to continue without the suspect being further detained.  Suspects are often released subject to conditional police bail which allows police officers to attach conditions to the bail, for example, in an effort to protect witnesses and/or reduce the risk of further offences.

Individuals can also be released subject to pre-charge bail without conditions or can be released under investigation (RUI) where there are no conditions applied to them in relation to the investigation.

What is the difference between being released subject to pre-charge bail and being released under investigation?

The main difference in relation to being released under investigation is that there is not a specific date for a suspect to return to the police station as there is with pre-charge bail.

As outlined above, conditions can also be attached to pre-charge bail, for example, conditions of non-contact with a complainant or not to go to a certain area/address.

Conditions cannot be applied when an individual is released under investigation

When can someone be released on pre-charge bail?

When a custody officer is considering releasing a suspect under pre-charge bail they must be satisfied under section 50A of PACE that releasing a suspect on bail is necessary and proportionate in all the circumstances (having regard to any conditions of bail that would be imposed). The custody officer must consider any representations made by the suspect or their legal representative.

The custody officer should have regard to the need to securing their surrender to custody, prevention of further offences, safeguarding complainants and witnesses, safeguarding the suspect (where vulnerabilities have been identified) and managing risk to the public.

When can bail conditions be imposed?

Conditions can be imposed to reduce any risks that could remain by granting unconditional bail.  The investigating officer should consider the necessity and proportionality of any proposed conditions to present to the custody officer who will make any decision in relation to police bail conditions.

Conditions may only be imposed where it is necessary;

• To prevent a suspect from failing to surrender to custody
• To prevent a suspect from committing an offence while on bail
• To prevent a suspect from interfering with witnesses or otherwise obstructing the course of justice
• For the suspects own protection or if a child/young person for their own welfare.

The investigating officer has a duty to seek the views of the complainant where reasonably practicable to do so as to whether conditions should be imposed and if so what conditions are to be imposed.  Once bail and conditions have been imposed the investigating officer should notify and explain the conditions to the complainant as well as explaining what they should do if the conditions are breached.

What sort of bail conditions can be imposed?

There is no set list of police bail conditions but they often include the following:

• Reporting – Having to report to the police station at specified times on certain days of the week
• Forfeiting your passport to prevent foreign travel
• Having a curfew – this would NOT be electronically monitored when imposed as part of police bail
• Non-contact – being unable to contact certain people (often the alleged victim) or others arrested with you
• Residence – Being made to live and sleep at a specific address
• Being unable to go to a specific location (e.g. an alleged victim’s place of work or home address)
• Attending a certain appointment

The bail conditions that the police impose will vary on a case-by-case basis.  As an example, in domestic allegations the police will frequently impose conditions of non-contact prohibiting an individual from making contact with the alleged victim or from returning to the matrimonial home which can impact upon child contact.

Can I challenge police bail conditions?

Often an individual may be released from the police station with bail conditions that may be disproportionate or do not allow an individual’s family lawyers to contact the alleged victim in relation to family proceedings. Often an individual may need assistance attending their home address to collect belongings when they are prohibited from returning to such address.

Whilst the responsibility for bail conditions is that of the Custody Sergeant, in reality they will be guided by the views of the investigating officer. In the first instance therefore, it is appropriate for defence solicitors to discuss any suggested variation to bail conditions with the investigating officer, explaining why the current conditions are disproportionate or the suggested variation is important.

In many cases we can successfully liaise with the police and negotiate variations to bail conditions.

A good example of this is where a defendant is ‘prevented from contact, directly, or indirectly with the alleged victim.’

This condition could cause a defendant to be in breach of his bail conditions if his family solicitor were to contact the alleged victim in relation to access of the joint children. It is our experience that different police officers hold different interpretations of this condition. In cases where there are no concerns in relation to an individual seeing his children, this could be considered a breach of their human rights and would prevent them from making an application to the family courts. Whilst some police officers may not view the above as a breach of bail conditions, some may interpret it as a breach and therefore it is preferable for the same to be amended to be crystal clear.

Ideally the condition would be amended to add ‘save for via a solicitor who is instructed to address both financial and children issues arising as a result of the parties’ separation and who may contact ‘the alleged victim’ in relation to such matters.

If the police will not vary police bail conditions, is it possible to challenge them at court?

Yes. If the police are not prepared to vary police bail conditions, then we can apply to the Magistrates’ Court to vary the conditions. The Magistrates will consider the case and arguments put forward in relation to the bail conditions by both the prosecution and defence solicitors.  The court can then either keep the same conditions, impose different conditions, or direct that bail shall be unconditional.

Where a defendant applies to the Magistrates’ Court to vary conditions of bail imposed by the Police, the court will fix a hearing date and notify the Crown Prosecution Service. A court should hear the application no later than the fifth business day after receiving the application.

In some cases, lodging of an application to the Magistrates’ Court can prompt the police to consider in more detail suggested variations to the current bail conditions and encourage negotiation prior to any court hearing.

How long can I be released on pre-charge bail?

Initially you can be released for a period of up to three months. The initial applicable bail period begins the day after a suspect is arrested for the relevant offence.  This can be up to three months.

However, in cases involving the FCA, SFO, NCA or HMRC case the applicable bail period is different, and a custody officer can authorise for up to six months instead of three as in standard cases.

The responsibility for authorising initial release on pre-charge bail is that of a custody officer. It is for an investigating officer to provide a risk assessment and rationale to the custody officer to determine suitability to be released on pre-charge bail and whether it is proportionate/necessary. A custody officer will then authorise, decline or request further work as appropriate considering any representations made by the suspect or their legal representative as well as the views of the complainant.

How long can bail then be extended for?

The initial applicable bail period can be extended with the authority of an inspector to six months.

They must ask the following questions:

• Is the applicable bail period still valid? If the applicable bail period has lapsed no extensions can be authorised.
• Have representations been sought from the suspect/legal representative?
• Have the views of the complainant been sought if reasonably practicable to do so?
• Are conditions A to D of section 47ZC of PACE met?

When can an Inspector authorise a bail extension?

In order to authorise an extension, the Inspector must be satisfied they have reasonable grounds for:

• Suspecting that the suspect is guilty of the offence.
• Believing that further time is needed for making a decision as to whether to charge the suspect with the offence or otherwise that further investigation is needed.
• Believing that the decision as to whether to charge the suspect with the offence is being diligently and expeditiously or otherwise that the investigation is being conducted diligently and expeditiously.
• Believing that the release on bail of the suspect is necessary and proportionate in all the circumstances.

Prior to the authorisation of each extension, the Inspector must arrange for the suspect or their legal representative to be informed and given time to submit representations.

The Inspector must then consider any representations submitted.

When can a second bail extension be authorised?

A second bail extension can be authorised by a Superintendent who may authorise a further extension from six to nine months.  This can only occur when the applicable bail period has not ended and when the conditions described above are met.  This extension must be authorised by a Superintendent and follows the same process as detailed above for an extension by an Inspector.

Exceptionally complex cases 

Section 47 ZE of PACE provides for cases that have been designated by the Director of Public Prosecutions as exceptionally complex to be able to allow extensions from nine months to twelve months.  This must be authorised by a qualifying police officer who must be the rank of Commander or Assistant Chief Constable or above.  The same conditions must be met.

Before determining whether to authorise such an extension the qualifying police officer must arrange for the suspect/their legal representative to be informed and consult with the Director of Public Prosecutions. Any representations submitted by the suspect or their legal representative must be considered and they must be informed when an authorisation has been made.

Extensions to the Magistrates’ Court 

When either the nine month extension by the Superintendent or the extension in exceptionally complex cases as described above is about to expire and the police consider they require additional bail time, they can apply to the Magistrates Court for an extension. This should be at least one week prior to the expiry of the explicable bail period.

How long can the Magistrates’ Court extend bail for?

The Magistrates Court have the flexibility to grant exceptions up to 12, 18 or 24 months (for exceptionally complex cases only) depending on the circumstances of the case.

Does this mean that investigations can drag on for too long?

Notwithstanding all of the above in terms of extensions, investigations still need to be conducted diligently and expeditiously irrespective of the time available as part of any remaining applicable bail period.   Regular progress against an investigation needs to be shown and an investigation should not drift. If there are actions to be taken to finalise a case and obtain a charging decision these actions should be taken as soon as reasonably practicable and not left until the end of the bail period.

This is specifically referred to within the pre-charge bail statutory guidance as a diligent and expeditious investigation will ensure a better service for victims and witnesses, better management and welfare of the suspect and improved evidence gathering and case file preparation.  The guidance specifically states that it also enhances the likelihood of justice being served.

Can I go on holiday if I have been released subject to police bail?

This depends on your police bail conditions. As long as you are not breaching your bail conditions by going away, you would be allowed to go on holiday. Clearly if you had a condition to report to the police station on a specific day and you would not be able to by virtue of your holiday, then you would not be allowed to unless the condition was varied.

However, it may be advisable that you contact the investigating officers to inform them of your travel plans in case there are updates to the investigation whilst you are away. Your legal team can do this on your behalf.

If I am released on police bail will this show on a DBS Check?

If you have been released on police bail this will not show on a basic or standard DBS Check. There is potential for it to show on an enhanced DBS Check.

The situation is that when someone is applying for an enhanced DBS check, any information can be disclosed in the ‘other information’ section. This is at the discretion of the police. It depends on various factors including the relevance to the offence, whether it is proportionate to disclose, and various other matters. It is also to a certain extent dependent upon how long it has been since the arrest.

The usual position is that if the police are considering disclosing the information, then they write to the applicant to afford them the opportunity to make representations as to why the information should not be disclosed. The police do not have to do this but in the majority of situations where an investigation is finalised, and it would not prejudice anyone to afford the opportunity to make representations then the police would invite them to make representations. For more information, please contact our DBS department.

How can Olliers Solicitors help me?

The investigations team at Olliers focus on a front footed, proactive approach which involves early police contact. We look at all potential avenues of investigation and defence lines of enquiry. We also seek to participate in pre-charge engagement in appropriate cases.

Our ‘Investigations’ page contains a number of case studies which illustrate what we have been able to achieve.

At Olliers, we have considerable experience in dealing with pre-charge matters. If you would like to discuss how we can proactively assist you in relation to your case at a pre-charge stage, contact us by telephone on 020 3883 6790 (London) or 0161 834 1515 (Manchester) , by email to info@olliers.com or complete the form below and we will contact you.