SMB simons muirhead burton partner and head of Crime & Regulatory Phil Smith and paralegal Mark Soames report on the UK Bail regime.
The Police and Crime Act 2017 reduced the number of suspects released on pre-charge bail. Suspects were increasingly released under investigation (‘RUI’) due to a presumption against bail. When a suspect is freed under investigation, they are released unconditionally; pre-charge bail can have conditions, such as residency or non-contact.
This spike in unconditional suspect releases raises two issues. First, releasing persons under investigation for major crimes makes it harder to protect witnesses and complainants. Second, a suspect’s release can delay an investigation’s conclusion. Officers investigating crimes don’t require permission to extend bail because there are no time constraints. Internal police monitoring of investigations and case management suffer.
The Police, Crime, Sentencing and Courts Act 2022 (‘the 2022 Act’) intends to alter the current bail framework and reverse the presumption against bail. It alters the presumption to a person being released on bail with conditions rather than ‘under investigation’ with no limitations. It also extends the time a person can be on bail, allowing conditions to be in place for longer.
The following Schedule 4 adjustments become effective on Friday, October 28, 2022.
Part 1 of Schedule 4 of the 2022 Act changes s30A of PACE (release of a person detained elsewhere than at a police station) to reintroduce the words ‘on bail’ which were deleted by the 2017 Act (emphasis added): ‘…a constable may release on bail a person who is arrested or brought into custody’.
Section 34 of PACE (limitations on police detention) is also altered to provide a presumption of release on bail. Unamended: (with emphasis)
(5) A person discharged under (2) is released.
(a)without bail unless (5A) applicable,
(b)on bail if (5A) applies.’
Section now reads (with emphasis):
(5)If subsection (5A) applies, a person ordered freed under subsection (2) must be released on bail.
Part 1 of Schedule 4 of the 2022 Act makes comparable semantic adjustments to s37 of PACE (duties of a custody officer before charge), s41 (limitation on the time of detention without charge), s42 (release after continuing detention without charge), s43 (warrants of additional detention), and s44 (release following an extension of warrants of further detention). In each case, the wording is changed to favor bail, as with s34. These adjustments orient the custody officer toward granting bail and away from releasing an under-investigation defendant.
More bail-authorizing officials
Part 1 of the 2022 Act allows a ‘custody officer’ to provide bail instead of a ‘police officer of the rank of inspector or above’ under s30A PACE (release of a person detained elsewhere than at a police station). Under s36(3), custody officers must be sergeants, however any officer can undertake their duties under s36(4) (4).
The 2022 Act expands the definition of a custody officer for authorizing bail to include any officer executing custody officer duties. Previously, only an inspector or higher could authorize bail, but now a constable can do so.
The new victim concept
New s30CA(6) introduces alleged victim.
P is an alleged victim if:
(a)P has experienced bodily, mental, or emotional suffering or economic loss directly caused by the act, and
P is a person.
Part 2 of Schedule 4 introduces pre-charge bail factors. s30A(1B) specifies the following as significant decision-making factors:
‘(a) ensuring the person surrenders,
(b)preventing the person from offending,
(c)the need to protect crime victims and witnesses, taking into account any vulnerabilities of an alleged victim or witness to the offense for which the person was arrested;
(d)the requirement to secure the person, taking into consideration any identified vulnerabilities;
(e)public risk management’
s50A uses the same factors (interpretation of references to pre-conditions for bail). Again, bail is emphasized over releasing an under-investigation subject. The necessity to protect victims and witnesses, including an alleged victim, is now a statutory element.
Schedule 4 Part 3 modifies 30CA (bail under section 30A: variation of conditions by police). It sets new tasks on a bail investigator:
‘(4A)If practical, the investigating officer shall seek the alleged victim’s (if any) views on—
(a)whether any relevant conditions should be changed under paragraph (1);
(b)If so, what should be changed?
(4C)If any relevant conditions are changed under paragraph (1), the investigating officer shall notify the alleged victim.
(4D)If the alleged victim of the relevant offence looks vulnerable to the investigating officer, subsections (4A) and (4C) apply to a person appearing to represent the alleged victim.
New section 47ZZA is titled ‘obligation to obtain views of accused victims on pre-charge bail’. If possible, an investigating officer must now solicit the accused victim’s opinion on safeguarding conditions.
How these additional duties will work in practice remains to be seen: a claimed victim may insist that strict requirements be set or maintained, but this may be countered with equally compelling arguments against doing so. It’s unclear how police will weigh these factors.
Pre-charge bail extensions
Extending initial bail periods may be the most significant adjustment. This is done by revising PACE s47 onwards. Practitioners should study Part 4 of Schedule 4 of the 2022 Act for the full list of changes.
PACE s47ZB is changed to extend bail in most circumstances. Under the old system, the SFO had 3 months from the bail start date (the day after arrest) and 28 days otherwise to examine a case. 6 months for SFO, FCA, HMRC, or NCA cases, 3 months for others.
Any officer working for the proper investigatory authority can now confirm a case as belonging to their organization (e.g., an HMRC officer can confirm their inquiry is ‘an HMRC case’). Under the old rules, only an SFO’senior officer’ could confirm this.
A’relevant officer’ of inspector or above (previously a’senior officer’) can extend bail to six months in typical cases (formerly three months). New s47ZDA allows pre-charge bail extensions where s47ZD was used. For’standard cases’ (those that fit within 47ZB’s new ‘any other case’ category), a senior officer can now authorize bail up to 9 months from the bail commencement date.
Where one of these standard cases is a “designated case” (a case deemed “exceptionally complicated” by the DPP), this maximum duration may be set at 12 months from bail start date. 47e(5) and (6) require the officer to notify the suspect’s legal counsel of the extension and evaluate any objections. In this instance, only a commander or above can authorize the extension.
New s47ZDB allows senior officers from HMRC, the FCA, NCA, or SFO to extend a suspect’s maximum bail time to 12 months, but there is no requirement that an extension is currently extant and has yet to lapse. Section 47ZF doubles the duration a judge can extend bail to 12 months for regular cases and 18 months for specified cases.
Courts’ bail powers
Section 47ZF governs Magistrates’ Court bail extensions. It is now revised to cover standard situations where bail is extended under new s47ZDA, non-standard cases where bail is prolonged under new s47ZDB, and specified cases under s47ZE.
Courts can now extend bail for 12 months in regular cases and 18 months in non-standard and special cases. These restrictions are extended to 18 months and 24 months respectively where in long running investigations, it is doubtful a charge judgment would be made before the bail period elapses.
The effect of these adjustments is to steer police towards granting bail rather than releasing people under investigation. It appears likely that suspects will now also spend longer on bail. How these modifications are implemented and how police officers handle the added administrative work is unknown.
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