Bailed by the police – what you need to know
When someone has been arrested and detained by the police on suspicion of a criminal offence, the police have the power to release that person – who is now considered a suspect – pending further enquiries. In doing so, they will need to decide whether to impose any restrictions on the suspect’s ability to abscond, prejudice the investigation or commit further offences – this is known as “police bail”.
Following reforms introduced in 2022, the police have been making increased use of their power to bail suspects before deciding whether criminal charges will be brought, as shown by a recent House of Commons Library research paper.
A crucial phase
During any law enforcement investigation into allegations of criminal wrongdoing, investigating authorities (including, but not restricted to, the police) may choose to question potential suspects on a voluntary basis.
Alternatively, where the circumstances (such as the need to preserve evidence or prevent harm to others) call for it, the police have the power to arrest suspects in accordance with the relevant Codes of Conduct issued under the Police and Criminal Evidence Act 1984. Arrests can take place for several reasons and are ordinarily followed by a period of detention (limited in law to no more than 24 hours, extendable to up to 96 hours) in police custody, allowing officers to question the suspect, preserve, seize and analyse evidence and conduct other enquiries – as may be necessary. This phase is crucial to most investigations for the simple reason that the evidential threshold for an arrest – that there are “reasonable grounds to suspect” the commission of an offence – is lower than the threshold for a charge – that there is a “realistic prospect of conviction”. The police will use the time the suspect is in custody to try and obtain sufficient evidence to bridge that gap.
However, in many cases, once the deadline on police detention runs out, officers will not yet have sufficient evidence to meet the higher test.
Without a charging decision, no case can reach court and be tried. Therefore, to allow authorities to conduct further enquiries and to come to a final view on the potential offence, suspects will need to be released. Legislation allows for this to be done in one of two ways: either by imposing police (also known as pre-charge) bail or releasing the suspect without bail but under investigation (referred to as “RUI”).
To understand the implications of the imposition of police bail, it is easier first to examine RUI.
RUI allows a suspect to go free without any police oversight and no restrictions or conditions imposed on their movement and activities. RUI-d suspects are under no obligation to report to the authorities, remain in the country or account for their conduct; they simply remain a person of interest until the police decide otherwise.
Crucially, the police may take as long as they need to to complete the investigation – RUI has no time limits. However, suspects may be under an employment, immigration or other professional obligation to disclose to certain third parties the very fact of the ongoing investigation.
Conversely, getting bailed by the police is not only a matter of status but comes with very real, practical consequences.
Firstly, everyone on police bail will be ordered to physically report at the investigating police station at a date and time determined by the police (the “bail return date”) – as a form of monitoring. During the bail return date, suspects may be re-interviewed, either followed by a further bail extension or the charging decision itself.
Secondly, one or more bail conditions may be imposed on suspects at the police’s discretion (where deemed necessary to preserve evidence, protect victims or prevent interference with the investigation).
Such conditions can restrict a suspect’s movements and who they associate with, as well as severely impacting their everyday lives – through the imposition of a curfew, the removal of a suspect’s passport or the prevention of the suspect’s return to the family home, among the available tools. Breach of these conditions without a reasonable excuse can lead to the suspect being arrested again.
Failure to attend the bail return date without reasonable excuse is a criminal offence in its own right, carrying a maximum sentence of 12 months’ imprisonment. If the police consider a suspect to have breached their bail conditions, the suspect can be re-arrested for the breach and brought in front of the police.
Due to its onerous nature, police bail can be granted only subject to authorisation by the police station’s custody sergeant and is subject to an absolute time limit of three months (called the applicable bail period or “APB”), which may be extended under specific circumstances and only if deemed necessary by the police by up to another six months.
While police bail has many drawbacks for those under investigation, especially where no charges are brought, as set out above, the APB clock running is an incentive for the authorities to conduct their investigation expediently and to arrive at a charging decision as soon as reasonably possible.
APB time limits also provide certainty to those on police bail that their bail conditions will not last for longer than nine months at an absolute maximum (and typically less in most cases). On the other hand, there is nothing stopping the police from changing a suspect’s status from APB to RUI, meaning that the person may remain in a limbo for an indeterminate period of time.
Origins of the current system
The current system (including the time limits on APB) was introduced in 2017, as part of a major overhaul of police bail following complaints from suspects, such as the DJ Paul Gambaccini, who had been kept on bail for many months, even years, before the police decided to close their investigation without bringing any charges. APB was put in place to ensure that bail was imposed only where truly necessary and with a firm end date.
Importantly, as part of the overhaul, a presumption against bail (and in favour of RUI) was introduced. However, in the intervening years, this has led to growing concerns about a failure by authorities to safeguard victims’ safety by not imposing bail (and thus, protective bail conditions) on suspects – in particular, in domestic violence cases.
Therefore, in late October 2022, further reforms were introduced to police bail, which replaced the presumption in favour of RUI with a neutral test of necessity and proportionality.
Now, when deciding whether to impose pre-charge bail, the police are legally required to take a list of statutory factors into account around the risk posed to victims by opting for RUI. While APB time limits remain in place, the level of internal police authorisation required for imposing and extending APB has also been lowered. The police’s professional body, the College of Policing, is also shortly expected to issue binding guidance on best practice.
A return to routine?
It is expected that the latest reforms will see a return to the regular use of police bail, but now balanced with the protection offered by APB time limits. The test of necessity and proportionality should prevent police bail from once again becoming a routine and default option for police. Even when the tests are met, suspects or their legal advisors are able to make representations to the police on the appropriateness of imposing particular bail conditions, to ensure that the least restrictive measures necessary are put in place.