Home Office consultation on pre-charge bail

Pre-charge bail allows police to release a suspect from custody, usually subject to conditions, while officers continue their investigation or await a charging decision.

Reforms made in 2017 limited the length of pre-charge bail to an initial 28 days and required any extension of bail conditions for up to three months should be authorised by a senior officer.

This was intended to prevent those under investigation being left for lengthy periods under restrictive bail conditions without being charged. The consultation sets out proposals which are intended to put victims of crime at the heart of police decision making and support the timely progression of investigations.

Proposals for consultation include:

• removing the presumption against pre-charge bail
• placing a duty on officers to use pre-charge bail in cases where it is necessary and proportionate, including for cases where there are risks to victims, witnesses, and the public, and where it could prevent reoffending and where the offence in question has significant real or intended impacts
• allowing officers of a lower rank to authorise and extend pre-charge bail
• extending the initial period where pre-charge bail can be applied from 28 to either 60 or 90 days, as well as delaying the point at which magistrates’ approval for the extension of bail is required from three months to six, nine or 12 months
• introducing ‘review points’ in codes of practice for investigations where pre-charge bail is not used, including where individuals are interviewed voluntarily or released under investigation

Our view

We do not agree that the presumption against bail should be removed. Police officers should be required to consider each case and only impose bail where it is necessary, taking into account the risk of failure to attend court, reoffending or an actual risk to a victim or witness. We support the proposed model that retains the shortest of time limits in relation to pre-charge bail.

Our consultation response includes recommendations to:

1. Introduce greater strategic oversight to the investigative process. When seeking a decision to bail a suspect, investigating officers should be required to prepare an investigation plan which is then placed on the custody record – detailing tasks to be completed against the progress of the investigation.
2. Include fixed timescales for cases where the suspect is released under investigation in primary legislation, in the same way as the pre-charge bail periods are. We prose an approximate 56 days’ period authorised by a sergeant, with approval needed from a chief inspector or superintendent for an extension to six months. For an extension of up 12 months, approval from a magistrate should be needed.
3. Charge suspects with a criminal offence arising from the behaviour said to breach bail conditions, so an offence of witness intimidation, attempting to pervert the course of justice, or a Protection from Harassment Act 1997 offence of harassment with threats of violence. The CPS should be asked to provide guidance to the police on seeking a charging decision using the threshold test, so that the police then have some leeway to gather evidence.

What this means for solicitors

If the Home Office accepts the proposals supported by our response solicitors acting for those suspected of criminal offences should see more efficient and focused criminal investigations, that result in faster decisions as to whether to the suspect is charged with a criminal offence or not. If charged, the defendant’s solicitor will then be in a position to advise their client as to their options and represent them in court.

Next steps

The consultation closed on 29 May 2020. The Home Office will consider the responses and set out its final proposals in due course.