Police Bail before Charge: New Timetable and Statutory Changes

Monday, 26 September 2022 | David Janes

I have written two previous articles concerning the statutory regime relating to Police Bail before charge (see my article ‘Revolutionary Changes to Police Bail’ and follow up).

The Police, Crime, Sentencing and Courts Act 2022 (“the Act”) has brought about further radical (if not revolutionary!) changes.

Fundamentally, the presumption against bail has been withdrawn, so each case must be decided by the Custody Officer on its own merits without any presumption for or against bail (as opposed to Release under Investigation).

This is brought about by a series of amendments to Schedule 4 of the Act, which neutralises the statutory steer and places the matter more squarely in the hands of the Custody Officer, although it is anticipated that bail cases will largely increase .

The defence should remain astute to submit to the Custody Officer that in appropriate cases that bail is not necessary at all and by adopting neutral application of the statutory criteria, Release under Investigation is the correct path. Oral and/or written representations may be made to this effect at the time of the decision or if this is not feasible I see no reason why they cannot be made subsequently.

If bail is granted, the Custody Officer may, as before, impose conditions. Indeed the need for conditions may be uppermost in the Officer’s mind when determining the question of whether bail should be imposed. Therefore it may be salutary to roll up the question of the necessity of conditions when making representations or submissions concerning bail. The onus is still on the Police to show that the conditions are necessary.

One interesting change in relation to conditions, is that it is now necessary for the Officer to seek and consider the views of an alleged victim before imposing conditions that may have an impact upon the alleged victim (if it is reasonably practical to do so) or upon any application for a variation of the conditions.

Hence, for example, if a husband or wife is accused of assault upon his or her spouse, and there is a condition for the accused not to enter the home, the Officer must, if feasible consult the spouse before making any no contact or no entry to the matrimonial home condition. Similarly if such a condition is made, and the accused seeks to vary it, then the spouse must be contacted and his or her views sought.

These new provisions can work both ways. The spouse or partner may, and often will be, most grateful for the safeguard provided by the condition. However conversely many spouses or partners will not have welcomed the condition or will have genuinely changed their view, and wish it to be relinquished. Up until now alleged victims do not appear to have any rights in this regard and there was no obligation to take their wishes into account. Now for the first time it would appear that the alleged victim has an express statutory locus for their views and feelings to be considered and aired.

In my opinion this is refreshing because many spouses or partners have in the past felt helpless as they were bereft of a legal right to be heard, in respect of conditions which affected them (in cases) as much as the accused – for example the sad and tragic case of Caroline Flack.

The impact of bail, and concomitant conditions, will be all the greater because the time limits are being extended. The initial time limit is being extended in police cases from 28 days to 3 months, and thereafter with the approval from an Inspector or above to 6 months and thereafter a Superintendent or above to any extension to 9 months. The supposed safeguards referred to in my previous articles would appear to still apply, but as previously mentioned they were not in practice scrupulously followed and the Defence may be well advised to scrutinise what is taking place).

If the Prosecution require in excess of 9 months, application must be made to the Magistrates’ Court for judicial approval.

It is my reading of the legislation as a whole that a challenge to the terms of the conditions of bail may be made to the Magistrates’ Court at any time, but a challenge to the decision itself to impose bail or not to withdraw bail, prior to the 9 month period, should be made to the Administrative Court by judicial review. This is not helpful in practice because of the time that a judicial review may take, but in my experience, a protocol letter setting out the basis for such a review, may have a decisive impact.

I understand the provisions to which I refer are likely to come into force on the 28th October 2022 ( 6 months after the Royal Assent of the Act) and strictly speaking will apply to all persons first detained on or after that date. However by analogy it would seem to me the views of alleged victims should be taken into consideration, in respect of defendants who are subject to prohibitive conditions that remain after that date.

It remains to be seen how the new provisions will work in practice but there seems to be plenty of scope for the defence to be vigilant that they are not wrongly or unfairly interpreted.

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