Police Bail before Charge

Tuesday, 27 October 2020 | David Janes

In September 2017 I wrote an article ‘Revolutionary Changes to Police Bail’ (see Janes Solicitors website News and Opinion section).

At the time I stated that although revolutionary, the changes brought about by the Policing and Crime Act 2017 had received scant media or public attention.    This would appear to still be very much the case and there has been very little judicial oversight of the fundamental workings of the new bail scheme.    There also appears to have been a dearth of academic interest in it. This is all surprising bearing in mind the impact of the new scheme on the thousands of people who have been suspected of offences but find themselves in limbo between their arrest or voluntary attendance at the police station (or other agency) and the often lengthy and protracted decision of whether the prosecution charge or decide to take no further action.

This is a most anxious period for the defendant and complainant alike, and the longer the time it takes, the more traumatic it becomes.

Upon reflection, in my submission, the reason for the scant judicial oversight or lack of decided precedent in this area is that there is no procedural safeguard within the legislation to appeal the granting of bail at all (as opposed to a Release under Investigation) until the matter reaches the Magistrates’ Court which in complex cases may be as long as six months after the first bail date, and in other cases up to four months.

Although there is a procedural and statutory mechanism whereby the conditions of bail may be varied either by the Police themselves or by appeal to the Magistrates’ Court, there is no statutory mechanism to appeal the decision to release the defendant on bail rather than simply release the defendant under investigation (as is intended to be the normal default position under this new revolutionary scheme).

The absence of the right of appeal has in my submission led to a lack of scrutiny by the Courts as to the scheme in general.   The High Court does of course have a supervisory jurisdiction by way of judicial review, but at the early stage before the defendant has been provided full disclosure or evidence as to the alleged case against him, lack of funding and timing issues in my submission make this safeguard rather illusory.

In view of the lack of judicial scrutiny and precedent, I believe that the Police have become somewhat complacent as to the use of the procedure and the strict statutory provisions set out in the legislation are not always being adhered to and not strictly followed.

In my view the most flagrant and omniscient breaches are:

Stopping the clock when matter is referred to the CPS/DPP

In virtually all cases of any seriousness or complexity, the Police refer the case to the CPS for a decision whether to charge.

Therefore, a generalised provision stopping the clock every time the case is referred to the CPS, would drive a coach and horses through the legislation, and make the provisions virtually meaningless (especially as there are no provisions as to how long the CPS itself may take!).

However, that is exactly how the police seem to have interpreted the scheme – by and large they consider there is an automatic stop the clock whilst the matter is being considered by the CPS.   Many Police memoranda and guidance and explanatory drafts seem to reinforce this erroneous view.

However, in my respectful submission, this is a completely wrong interpretation of the legislation.

The provision extending time whilst the matter is being considered by the CPS/DPP is contained within s.47ZL of PACE introduced by s.63 of the Policing and Crime Act 2017.

However, s.47ZL only applies ‘where a person is released on bail under s.37(7)(a) or 37C(2)(b) of PACE’.

If the defendant was not released on bail under these rarely used sections, then 47ZL will have no applicability and the clock will not stop whilst the matter is in the hands of the DPP.   This will be the vast majority of cases as s. 37(7)(a) is only applicable where the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested but requires guidance from the DPP as to under 37(b).   In my experience this hardly ever happens.

A very limited exception to the bail clock is therefore wrongly treated as the norm. Hence bail periods are extended for much longer periods than the legislation if correctly interpreted would permit and I submit the purpose of the legislation is undermined.

However as stated in the introduction to this article, there are limited opportunities for procedural challenge to police decisions because of the lack of the statutory right to appeal and the other reasons stated.

In fact, in skeleton arguments on behalf of Janes clients, I have raised this issue and the Prosecution appear to have acquiesced the bail position, failing to point out any provision that defeats the submission.

In any event, common sense would indicate that if the Custody Officer was of the view that there was already sufficient evidence to charge, any bail pending referral to the CPS for this purpose, would be of short duration.    It was never intended to circumvent the main thrust of the Act.

Extension of Bail after 28 day period

Once the maximum bail period of 28 days authorised by the Inspector has expired, it may only be extended by a Superintendent (or equivalent) under s.47ZD or 47E of PACE (the latter being applicable in designated cases).

However both under 47ZD and 47E the authority must be made before the end of the bail period (i.e. before the 28 days) (or 3 months in SFO cases) and furthermore in each case the Officer must consider any representations made by the defendant or his legal representative.    It is necessarily implicit in this that the defendant or their lawyer will be given an opportunity to make representations to the Superintendent before the decision is made.

However, it would appear that there is more or less total disregard to these detailed provisions and from the experience of the firm and anecdotally, the Superintendent’s authority is granted before the defendant is notified or returns to answer his bail and in the absence of defence representations is treated as a fait accompli.

The defence are handicapped due to the lack of a formal procedure or provision in the legislation to appeal the decision to extend bail at this juncture, and as stressed above, judicial review is for the vast majority an illusory remedy.

However it is recommended that in appropriate cases a courteous but robust letter is sent, pointing out the procedural deficiencies and setting out the representations that would have been made and requesting formal reconsideration of the decision taking the representations into account.

In certain cases, the past history of the matter may be referred to the Magistrates’ Court if the Prosecution apply to extend bail yet further and the validity of CPS/DPP “stops” could be raised at that time.

The complexity of the statutory provisions, the lack of judicial decisions and the complacency of the Police (no doubt busy with other priorities and distractions) entails defence solicitors being astute and robust in this difficult and very important time for the client.


David Janes

27th October 2020

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