Recent changes to legislation mean that if you are suspected of committing a criminal offence, you are more likely to be released on pre-charge bail than released under investigation (“RUI”). The changes came into force in November 2022 under Schedule 4 of the Police, Crime, Sentencing and Courts Act 2022. We understand that many people have little or no experience with the criminal justice system and therefore find it confusing and frightening. To help you understand pre-charge bail and the recent legislative changes that have come into effect, we have deep-dived into the issue and answered your most pressing questions below.
What is the difference between pre-charge bail and released under investigation?
If you are arrested on suspicion of committing a criminal offence the police cannot continue to detain you in custody until they have gathered enough evidence to formally charge you as this can take days, weeks, or even months. Therefore, they will either allow you to leave the police station on pre-charge bail or release you under investigation.
The main difference between pre-charge bail and RUI is the former can be made subject to conditions, and the initial bail period before the new legislation came into force was restricted to 28 days. RUI comes with no conditions or time limits, meaning you could be left in limbo for months or even years whilst the police complete their investigations.
What are the changes to pre-charge bail?
The legislation now encourages police to use pre-charge bail in ‘every case where it is necessary and proportionate by removing the perceived presumption against pre-charge bail’. This means that if you are arrested and released, it is more likely it will be under pre-charge bail than RUI as the latter will only be used if pre-charge bail is not necessary and proportionate.
Other changes include:
- The initial bail period has been increased from 28 days to three months.
- Sergeants can authorise initial pre-charge bail up to three months. Previously, this power was restricted to those with the rank of inspector or above.
- The time limit can be extended twice, each time by three months, meaning you may be released on pre-charge bail for nine months in total. The extension from three months to six months must be authorised by a rank of at least Inspector. The six-month to nine-month extension must be authorised by a rank of at least Superintendent.
- If the police want to extend the time period past nine months, they must apply to the Magistrates’ Court for authorisation. This process is pursuant to the Criminal Procedure Rules 14.21 & 14.22, as well as sections 47ZF – 47ZJ of the Police and Criminal Evidence Act 1984.
- The police must inform complainants of any changes to pre-charge bail conditions and if reasonable and practicable, seek the complainant’s views on the conditions applied.
Why have the changes been introduced?
The lack of conditions and the unlimited time period associated with RUI has been a concern since changes to the use of pre-charge bail were introduced in 2017 through the Policing and Crime Act 2017 (“the 2017 Act”). At the time, there were serious concerns that suspects were being kept on pre-charge bail for long periods, often with onerous conditions. The 2017 Act brought in a presumption against pre-charge bail unless necessary and proportionate, the 28-day initial time period, and the need to apply to the Magistrates’ Court to extend pre-charge bail over three months.
The use of pre-charge bail subsequently decreased, and RUI became more common. However, this led to its own problems, most notably concern for the safeguarding of complainants due to the lack of any conditions imposed on RUI and the fact that suspects could linger on RUI for months or even years on end.
Things came to a head in September 2018 when Alan Martin was released under investigation by police in Sunderland, following his estranged wife, Kay Richardson, complaining to the police that he raped her. As well as not imposing any conditions, the police provided Martin with the keys to the home he shared with Kay (they had no power to withhold them). Martin subsequently entered the house and murdered his wife before killing himself.
Kay’s tragic death resulted in the media making a Freedom of Information request. Data obtained showed that between April 2017 to October 2018 a total of 93,098 RUI cases related to violence against a person and sexual offences. Furthermore, 2,772 of those cases had been classed as RUI for more than 12 months. One suspect, who protested his innocence and was never charged, spoke on the condition of anonymity to the BBC at the time, saying:
“Your life is effectively put on hold. You’re put into this limbo where everything starts falling apart around you, you’ve got no control of it whatsoever. I felt suicidal.”
The 2022 reforms are known as ‘Kay’s Law’ in memory of Ms Richardson.
What should I do if I am released on pre-charge bail or under investigation?
If you have been released on pre-charge bail or under investigation it means the police have further enquiries to carry out in your case, which may or may not lead to you ultimately being charged. Therefore, you need to take the situation seriously and contact an experienced Pre-Charge Criminal Law Solicitor. Many people assume that involving a solicitor is an admission of guilt, however, this is completely untrue. An experienced solicitor will not only ensure the police comply with their statutory powers, but they will also examine your case and begin to build a defence to ensure that if you are charged, you have a robust case in your favour ready to present to the Court.
Remember, you are entitled to police representation at the police station. It is vital that you contact a Criminal Law Solicitor before you answer any questions following arrest. This will ensure your legal interests are protected and you do not inadvertently say something that could be used against you if your case goes to Court.
If you have been arrested and/or released on pre-charge bail or under investigation our criminal law solicitors can help. Please get in touch through our contact page here.
Pre-Charge Bail Success Stories:
Case one: Contact With Child Resumed Following Legal Representation
Our client was arrested on suspicion of breaching his non-molestation order.
Following his interview, within which a factual dispute was raised in relation to the allegation, our client was placed on pre-charge bail. The conditions imposed by the police prevented contact with one of his young children, as well as preventing contact with his ex-partner and a geographical exclusion.
Ben Dishot of our Milton Keynes office represented our client at the police station following his arrest.
Ben raised a number of concerns at the time of his attendance at the police station and subsequently submitted lengthy written representations to the officer in the case and the investigation team’s Sergeant.
Ben raised that there were fundamental issues in the case and submitted that the bail conditions imposed were wholly unnecessary and disproportionate.
Ben firstly submitted that the client’s detention in custody was authorised based on factually incorrect circumstances and gave the indication that the client had been arrested for a plainly different allegation arising out of the same non-molestation order. Ben highlighted that no such allegation was being made, for which the detention was authorised.
Ben’s written representations also focussed on the fact that our client’s child, who was the alleged complainant, had not provided any supporting statement, nor were they prepared to support police proceedings. Moreover, through questions put to the officer in the case, Ben established that the alleged complainant did not express any concerns or issues over the contact that was alleged to have been intimidating.
The pre-charge bail written representations highlighted that there was no supporting evidence of the allegation being made and therefore the bail conditions imposed were wholly disproportionate and unnecessary.
The written representations also highlighted that the allegation and report to police pre-dated our client’s arrest by two months. Ben made written submissions that the necessity for arrest was not made out and the case was clearly capable of being dealt with by way of a voluntary interview. Ben’s representations focussed on the fact that there was no need to arrest our client to secure and preserve evidence, as the evidence presented in interview had already been secured two months earlier.
Ben challenged the police assertion that a search of our client’s property was the necessity for his arrest. The police indicated that the arrest was necessary in order to conduct a s.18 PACE 1984 search, however Ben’s written representations drew upon the fact that the s.18 PACE 1984 search could not have been the fundamental reason for arrest. S.18 PACE 1984 confers upon the police powers to search properties owned or controlled by the suspect. Ben made written submissions that the items asserted to be sought by the police could not have been of paramount consideration when arresting our client, as s.32 PACE 1984 empowers the arresting officer to search premises at the time of arrest, if there are grounds to suspect there are items that could relate to the investigation/allegation. Ben therefore highlighted that s.32 PACE 1984 would have been utilitised at the time of arrest, rather than seeking authorisation for a search some hours later.
The pre-charge bail representations also focussed on the fact that when the property search was conducted, provable factually incorrect information was noted on the search document left at our client’s property.
The written pre-charge bail representations submitted on behalf of our client highlighted the procedural, evidential and disproportionate issues in the case.
The bail conditions imposed by the police would have prevented our client from having contact with his child for at least three months, whilst the investigation proceeded. Our written representations pointed out that contact between our client and his child was frequent in the two months leading up to our client’s arrest, and after the allegation had been reported to police. Our written representations also highlighted that the non-molestation order remained in force and the bail conditions simply duplicated the geographical restriction and non-contact with our client’s ex-partner.
The condition concerning our client’s inability to have contact with his child would have had an untold impact, which could have quite easily evolved into a period beyond the three months, if the bail imposed was extended even further.
Our representations submitted that our client’s child was declining to support police proceedings and therefore any restriction on the contact between our client and his child had the potential to create a grossly detrimental impact.
Within four working days, we received confirmation that no further action was being taken against our client in relation to the allegation.
This was a hugely important case for our client, and implicitly his child, as the imposition of a condition preventing him from having contact with his child had an inevitable emotional impact upon him. It was therefore vital that this was addressed immediately, particularly given the array of issues at play in the case.
Our client instructed Ben to represent him in the pre-charge bail submissions, following Ben’s attendance upon him at the police station. The outcome achieved surpassed our client’s expectations, as he made it clear that his priority was to be able to resume contact with his child again. Ben’s written pre-charge bail representations highlighted that the case warranted an urgent review and for all conditions to be removed. The result sought by Ben in his careful and thorough representations was the result obtained.
Case two: Breaching an Order through Contact and the Successful Removal of an Order
Our client was arrested on suspicion of breaching his non-molestation order, which arose out of an allegation of contacting the applicant thereby breaching the terms of the order.
Our client submitted the statutory defence of reasonable excuse for the contact, which was centred around emergency welfare concerns for their shared child.
Following his interview, our client was released on pre-charge bail with an exclusion zone condition preventing him from entering an entire county, despite the full contextual account he had provided in interview relating to the allegation he faced and the emergency welfare concern that had arisen.
Our client privately instructed Ben Dishot of our Milton Keynes office to make representations to the police in relation to the bail condition imposed.
Ben submitted lengthy written representations to the Officer in the case and the Custody Sergeant highlighting the wholly disproportionate bail condition that our client was subjected to.
Ben raised that the condition implicitly caused a detrimental impact upon the client’s four children, who all lived with the complainant within the county area that our client was prohibited from entering. Ben further raised that the emergency welfare concern that had given rise to this allegation had culminated from a series of prior events whereby the client had travelled to assist his child when other issues had arisen. Consequently, the bail condition therefore prevented the client from providing that assistance in the future.
Ben raised that the access arrangements had been frustrated prior to the allegation and pre-charge bail being imposed, therefore the bail condition would only likely serve to frustrate those access arrangements further moving forward. Ben therefore submitted to the police that the bail condition had far reaching consequences for all of the client’s children and did nothing more than duplicate what the non-molestation order already provided for; it therefore served no proportionate or necessary benefit.
It was made clear in the written representations that our client had raised a statutory defence of reasonable excuse. Ben also advanced, with reference to the non-molestation order itself, that a defence is provided for within the wording of the non-molestation order pertaining to contact with the complainant being permitted in emergency situations concerning the children.
The lengthy written representations submitted that bail was unnecessary and disproportionate, given the full circumstances of the case.
Ben sought to have the bail removed in its entirety, which would therefore permit our client to go about his daily life without any geographical restriction. By seeking to remove bail in its entirety, it would enable our client to continue his contact and responsibilities with his children, as well as be able to attend to assist any of his children in the future in the event of any difficulties they encountered. Furthermore, on the issue of proportionality and necessity, Ben advanced that the non-molestation order would be in force for longer than any pre-charge bail and would carry its own criminal sanction, if breached.
Following protracted verbal and written representations to the police, Ben sought a listing at the Magistrates’ Court for the Court to determine the removal of bail.
At the stage of the hearing being listed, the police confirmed that bail would be removed in its entirety and our client was reverted to being released under investigation. This therefore meant that the investigation and disposal decision making process would continue behind the scenes, but that the client was not subject to any prohibitions by virtue of bail conditions. It also meant that, logistically, he no longer needed to attend the police station on a set date and time, as the decision on his case would be communicated to him by post. This latter point was also important to the client, as he did not reside locally and attending the police station had a direct impact upon his daily commitments.
As a consequence of the lengthy written and verbal representations, the objective sought in removing our client’s bail was achieved.
Naturally, our client was extremely relieved and grateful that our perseverance and robust representations had resulted in his full liberty being restored and he was able to continue contact with his children without a geographical exclusion in place.
