Pre-charge bail and RUI: what is the impact of the October 2022 changes?
22 Feb 2023
In October last year, the Police, Crime, Sentencing and Courts Act 2022 introduced yet more changes to the police bail regime. In a blog, Serious and General Crime solicitor Bartholomew Dalton analyses what impact this changes will have.
+++++
The issue of police bail (which is more properly called pre-charge bail) is a rarely out of the news.
Whether or not bail should be granted; under what terms; and for how long are all questions which are frequently asked in high-profile criminal cases…and which, as such, our politicians seem unable to leave alone.
There have recently been a series of significant changes to the way bail operates in the England and Wales. This includes the introduction, in 2017, of the bail-alternative ‘Release Under Investigation’ (RUI).
In October 2022 the law relating to pre-charge bail and RUI were changed yet again with the introduction of the Police, Crime, Sentencing and Courts Act 2022.
Four months on from the introduction of these provisions – and as the police implement the first extensions under the new legislation – how, in practice, is the new regime functioning?
What are pre-charge bail and Release under Investigation?
When someone is arrested, the police have the power to hold them in custody for 24 hours (this time limit can be extended if certain conditions are met) while officers investigate the facts of case.
If, once this time limit is up, the police feel they need more time to investigate then they have two options: either release the suspect under pre-charge bail; or release them ‘under investigation’
The two categories have slight differences.
An individual who is granted pre-charge bail is given a date on which they must return to the police station. They may also be given conditions (such as an obligation not to contact a particular person or not attend a particular location). A suspect can be arrested if they breach their conditions and a breach can adversely impact their chance of obtaining bail in any future proceedings. Bail periods are set, which the police must apply to extend if they have not completed their investigation within the relevant time period and wish for the suspect to remain on bail.
When someone is released under investigation there is no fixed date to return to the police station and there can be no bail conditions. However, the ‘open-ended’ nature of RUI means there is very little oversight into how long an investigation is taking.
What were the October 2022 changes to bail and RUI?
From 2017 until the introduction of the recent October 2022 changes the police operated under the (rebuttable) presumption that a criminal suspect would be released under investigation rather than granted bail.
This proved controversial. Many commentators (including Hickman & Rose’s Head of Serious and General Crime Jenny Wiltshire) argued that the increased use of RUI has led to suspects being kept in ‘legal limbo’ for much longer as police took advantage of the status’s open-ended nature.
The recent changes were introduced partly in order to address this issue.
The changes oblige the police to release a suspect on bail (rather than under investigation) if they are satisfied that it is necessary and proportionate to do so. In deciding this, they should consider a series of issues. Summarised, these include:
- the need secure that the person surrenders to custody,
- the need to prevent offending by the person,
- the need to safeguard victims of crime and witnesses,
- the need to safeguard the person, and
- the need to manage risks to the public.
The introduction of defined criteria relevant to the bail decision-making provide some much-needed clarity to a process that was previously somewhat opaque, but is ultimately unlikely to make much difference to the police bail decision making process.
How have time limits to bail changed?
The time limits for which a person can be bailed have been extended significantly. There are exceptions for non-standard cases (such as those being investigated by the SFO, FCA, HMRC or the NCA and cases designated as exceptionally complex), but generally the police can now bail a suspect for the following time periods:
| Bail period/extension | Maximum Time Period (pre 28 Oct 22) | Who authorised bail (pre 28 Oct 22) | Maximum Time Period (post 28 Oct 22) | Who authorises bail (post 28 Oct 22) |
| Initial bail period | 28 days | Police (an inspector) | 3 months | Police (a custody officer) |
| First extension | 3 months | Police (a superintendent) | 6 months | Police (an inspector) |
| Second extension | N/A | N/A | 9 months | Police (a superintendent) |
| First court extension | 6 or 9 months | Magistrates’ Court | 12 or 18 months | Magistrates’ Court |
| Subsequent court extensions | A further 3 or 6 months | Magistrates’ Court | A further 3 or 6 months | Magistrates’ Court |
As can be seem above, as well as the time limits being extended significantly, the seniority of the police officer granting bail has decreased.
The effect is that there is now less oversight of investigating officers in terms of pre-charge bail that there was pre-October 2022.
What is the impact of the need to seek the views of an alleged victim?
It has long been the case that lawyers for criminal suspects can make representations as to whether an individual should be released from custody or have their bail conditions altered.
Now, the police must also (when reasonably practicable) seek the views of the alleged victim or their legal representative. This also applies if the police are requested to vary or extend any existing bail conditions.
It is currently the case that the police frequently ignore their statutory obligation to ask a suspect or their lawyer for any representations in relation to bail.
The new obligation to seek the views of alleged victims is likely to lead to the consideration of defence representations slipping even further down the list of police officers’ priorities.
What do the Oct 2022 bail changes mean in practice?
In February 2020, my colleague Jenny Wiltshire argued against the Government’s proposal to extend the amount of time that a person could be kept on pre-charge bail.
She told The Times newspaper that the then Home Secretary Priti Patel’s plans to do this would “effectively make the pre-charge bail system just as free from external oversight as RUI, with the result that very little changes.”
It is unfortunate that the Government did not heed Jenny’s warning.
In my, and my colleagues’, experience the police generally apply for the maximum possible bail extensions. The recent changes will inevitably result in more people being granted bail (as against RUI) and being on bail for much longer.
The introduction of defined criteria relevant to the decision-making will help defence solicitors advise their client about whether they are likely to be successful in challenging police bail applications, but is likely to have little material effect on the police’s decision making process.
Is this the last spin of the bail reform merry-go-round?
The October 2022 bail reforms will have a significant real-world impact. But ultimately, they amount to little more than rearranging the deck chairs on the Titanic.
The underlying problems here are:
a) the amount of time that it takes for the police to complete their investigations (particularly where they need to download and consider electronic evidence), and
b) a general police culture of not wanting to engage properly with defence lawyers during investigations.
The recent bail changes do nothing to impact these existential issues. Criminal suspects will remain of secondary importance while police investigations proceed at glacial speeds.
Bartholomew Dalton is an associate in Hickman & Rose’s Serious and General Crime team. He is co-author of Blackstone’s Magistrates’ Court Handbook 2023, due to be published by Oxford University Press in March 2023.
