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More suspects are likely to be released on pre-charge bail, rather than released under investigation, thanks to recent legal changes. Conditions can be attached to pre-charge bail, limiting contact with alleged victims and imposing other restrictions.
Here, we take a deep dive into what is changing and why. We also explain what it means if you are suspected of a criminal offence.
If you need a criminal defence solicitor, please contact us at Ashmans Solicitors. We have a highly experienced team of solicitors ready to help you. We are available to take your call 24 hours a day, 7 days a week.
Pre-charge bail vs released under investigation (RUI)
There are times when someone is suspected of committing a criminal offence but the police do not have enough evidence to formally charge them. In this situation, the suspect cannot be detained in custody indefinitely, so the police must release them back into the community. The police can either release the suspect:
- On pre-charge bail; or
- Under investigation
So, what’s the difference between the two?
With pre-charge bail, conditions can be imposed on the suspect. They might have to stick to a curfew, report to the police station at regular intervals, and avoid contact with certain people. Regarding the latter point, it is particularly common for suspects to be told to avoid the alleged victims of their crime, and/or anyone else involved in the case. Breaking pre-charge bail conditions is grounds for arrest.
Pre-charge bail is also subject to time limits. In other words, the suspect can only be kept on pre-charge bail for a certain amount of time, after which their case must either be dropped, or the police must lay charges.
None of these criteria apply when a suspect is released under investigation (RUI). There are no conditions or restrictions, meaning a suspect could travel abroad if they wanted to. It can also continue indefinitely. This leaves the suspect in a state of limbo, as they could remain under investigation for months or years on end.
Continual legal changes
In recent years, policy-makers have been round in circles regarding the issue of RUI and pre-charge bail.
Before 2017, pre-charge bail was the norm. However, there were concerns that suspects were being kept on pre-charge bail for long periods of time, often with strict conditions imposed. This was considered unfair, resulting in legal reforms being implemented in 2017.
Under the 2017 legal reforms, the initial bail period for standard criminal cases was restricted to 28 days. The wording of the law was changed so that pre-charge bail was no longer the ‘default option’. Instead, police officers preferred the new RUI system, leaving them more time to investigate crimes.
But it soon became apparent that this created other problems. With a ‘presumption against pre-charge bail’, more and more suspects were being released under investigation. This left suspects at the mercy of protracted police investigations, creating huge amounts of stress and uncertainty.
The other problem with the RUI system was that it afforded the alleged victims of crime with very little protection. Someone accused of domestic violence could, for example, contact their alleged victim without breaking any kind of conditions. This is what happened in the case of Kay Richardson, who was murdered by her estranged husband after he was released under investigation following his arrest for sexual offences.
2022: further legal changes to address concerns
The RUI system quickly become controversial. It was felt that bail was not being used when it should have been, particularly where there was a risk that individuals would commit an offence or interfere with victims/witnesses following their arrest.
A public consultation was launched in 2020 to better understand these concerns, the results of which were published in January 2021. Now, the law has been reformed once again, as set out under the Police, Crime, Sentencing and Courts Act 2022. This took effect on 28 October 2022 and amends the pre-charge bail provisions in the Police and Criminal Evidence Act 1984.
What’s happening now?
The rules set out under the Police, Crime, Sentencing and Courts Act 2022 are as follows:
As of 28 October 2022, the presumption against pre-charge bail has been removed. Police officers are now encouraged to use pre-charge bail where it is necessary and proportionate. In practice, we expect to see an uptake in the number of people placed on pre-charge bail, and a reduction in the number of suspects released under investigation. The RUI system still exists, but should only be used where bail is not necessary and proportionate.
Longer time limits for bail and less court involvement
The time limits for pre-charge bail have also charged. Under the 2017 reforms, the initial bail period was restricted to 28 days. Now, the first period of bail can be up to three months. This can be authorised by custody officers and police constables, which is also new. Previously, authorisation could only be given by a police officer of the rank of inspector or above.
After three months, bail can be extended by another three months (totalling six months) by an inspector. After six months, bail can be extended yet again by another three months (totalling nine months) by a superintendent.
After nine months, further bail extensions must be authorised by a Magistrates’ Court. Again, this differs to the previous rules, whereby extensions could only be granted by a senior officer of the rank of superintendent or above, and extensions beyond three months had to be authorised by the Magistrates’ Court.
The 2022 reforms also place a greater emphasis on the protection of victims and witnesses. Police officers are encouraged to take into account the views of victims before releasing a suspect on bail. Specifically, police should reference a list of risk factors when making their decision. The views of victims should also be sought if a change in bail conditions is proposed.
Recap – how has pre-charge bail changed?
To recap, as of 28 October 2022:
- Police officers are likely to favour pre-charge bail over released under investigation
- The initial bail period is three months, which can be extended by senior police officers twice, up to a total period of nine months
- After nine months, any further bail extensions must be authorised by a Magistrates’ Court
- The initial bail period can be authorised by low-ranking officers, including custody officers and police constables
- Police have a duty to inform victims of changes to pre-charge bail conditions and to seek views from them on what conditions concerning their safeguarding look like
- Fewer people will be released under investigation, which has become a controversial practice due to little safeguarding for victims and greater uncertainty for suspects
Do you need a lawyer?
If you need a criminal defence solicitor, get in touch with us at Ashmans Solicitors. We are leading defence solicitors, representing clients across England and Wales.
If you have been released under investigation or on pre-charge bail, it means that you are the subject of a criminal investigation. We recommend that you get your own solicitor to represent you. We are members of the Legal Aid scheme and can discuss funding with you in more detail.
Remember that you are also entitled to free legal representation at a police station. This is available to everyone under the Legal Aid scheme, no matter what your age or citizenship.