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News and Events

Bail Changes

  • Posted

Bail... not as we know it any longer.

3rd April 2017 signifies the new changes to the Law relating to suspects arrested and whether bail will apply. The Policing & Crime Act 2017 was drafted in light of the publicity surrounding famous people arrested for historic sex abuse allegations, being left on bail for months at a time, even years, to then be released without charge. Significant restrictions being placed upon a person’s liberty for lengthy periods of time, only to have them removed when, in some cases, the damage to reputation has already been done.

Sections 52 -67 relate to pre-charge bail. There is a presumption of release without bail in all cases, similar to the presumption of bail in all Court cases, unless bail is deemed “necessary and appropriate”.  These terms are not defined anywhere in the Legislation and therefore they will be subjective to the decision maker. This in itself could lead to uncertainty and disparity between cases.

Bail should, from this date, only be imposed if certain criteria are met and that criteria is only defined as being “necessary”. Even if it is “necessary” to impose bail, this is limited to 28 days. However, as with most things, there are exceptions to this rule and ways that bail can be extended past the 28 day limit.

A Custody Sergeant can authorise bail of up to 28 days. Thereafter, a Senior Police Officer, namely a Superintendent, can authorise an extension of bail for up to 3 months. In exceptional circumstances, again not defined in the legislation, the Police would have to apply to the Magistrates Court for a total extension of 6 months. This is done in two stages; 3 months at a time.

In all cases whereby an extension is requested, the Police must show that they have acted “diligently & expeditiously”.

The changes do not prohibit people being on indefinite bail but it is there to act as a deterrent to Police Officers re-bailing suspects unnecessarily. Officers must justify if they want to keep a suspect on bail.

Previously, the Police have relied on the threshold test and this is when they have evidence of a crime and it relates to a suspect. They review the evidence and decide whether what they have is of enough evidential value for someone to be charged. This test will not change in light of the new Legislation.

If the Police decide to bail you pending further enquiries, for example to obtain CCTV or further witness statements, a time limit of 28 days should suffice and serve to focus the Officer’s mind in completing the outstanding work. This however, will be dependant on the Officer’s caseload and means they will have to prioritise cases.

It does not mean that after being on bail for 28 days, your case will automatically be ‘thrown out’. The Police can either apply to extend your bail or they can release you “not on bail, under investigation”. This means that you will not be placed on bail but the case will remain live and investigations will continue. It does not mean that you have been released without charge (also referred to as NFA – no further action).

If the investigation results in further evidence being obtained against you, the Police can then contact you to arrange for you to attend at the Police Station for a Voluntary Interview, or they have the power to re-arrest you.

The majority of cases that will be deemed “necessary” to have bail imposed, will be cases such as sexual assaults, serious physical assaults, including domestic related, and cases involving vulnerable suspects and witnesses. Conditions upon bail may also be “necessary” to protect the victims.

Under the new legislation, an automatic judicial review process will become relevant following a 3 month extension to bail. This is where consideration is given to the “necessity” test and whether the case was one which bail should have been applied.

Each case has to be considered on its own merits and necessity when it comes to whether bail is appropriate. If it is deemed as not being “necessary”, then bail will not be imposed.

Suspects may see an increase in being asked to attend a Police Station on a voluntary basis, so that detention does not need to be authorised and bail provisions do not need to be considered. This is appealing to those suspects who face suspension from work if on police bail, as attending voluntary is not an arrest.