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England: Proposals Introduced to Reform Pre-charge Bail to Provide Better Protection to Victims of Violent Crime

(Mar. 1, 2021) On January 14, 2021, the U.K. government published its response to a consultation into the use of pre-charge bail amid concern that it was not being used appropriately because of a “presumption against its use,” meaning that the police must use it only when necessary. Most notably, suspects were being released after questioning but while still under investigation and were thus not subject to oversight or reporting requirements.

Pre-charge bail requires individuals who have been arrested but not charged to meet certain conditions, such as those designed to prevent the individual from committing further offenses, interfering with witnesses, obstructing the course of justice, preventing them from absconding, or, in the case of minors, protecting their welfare and interests. These individuals must return to the police station at a specific date and time to receive information about the status of the case or progress of any investigation.

The government has stated that it intends to introduce legislation to remove the presumption against the use of pre-charge bail in order to

create a neutral position within legislation so that there is neither a presumption for nor against pre-charge bail. Decisions on bail will continue to be made with reference to whether such a decision is necessary and proportionate on a case by case basis.

In addition to removing the presumption against the use of pre-charge bail, the government has stated that it intends to introduce legislation to increase the amount of time a suspect may be subject to this bail. The government has stated it will extend the period an individual can initially be subject to pre-charge bail from 28 days to three months, with extensions of up to nine months being approved by a senior police officer, and extensions beyond nine months requiring the approval of a magistrate, with reviews every three months thereafter. The government found that the shorter time frame and authorization requirements “disincentivised the use of bail” and did “not properly reflect the operational realities faced by the police and other law enforcement bodies.” It aims for the new timescales and authorization levels to be proportionate to the crimes defendants have committed and the risks they pose.

The consultation also reviewed the process of releasing persons under investigation and determined that, while the process of release under investigation was unsatisfactory, the removal of the presumption against pre-charge bail would, over time, effectively serve to limit the use of this procedure.

The government initiated a previous consultation into pre-charge bail in 2015 after concerns were raised that pre-charge bail was lasting for long periods, leading to “an extended period of uncertainty” and stress for suspects between the time of arrest and the subsequent decision on charging. To counter these concerns the government enacted the Policing and Crime Act 2017, which amended the Police and Criminal Evidence Act 1984 and introduced the presumption against pre-charge bail, requiring any use to be proportionate and necessary. The time frame was also reduced to an initial period of 28 days, extendable for up to 3 months and beyond when authorized by a police superintendent, with any extensions after that period by magistrates. The result of the reform has been a significant drop in the use of pre-charge bail, with an increasing number of individuals being released under investigation. This has led to longer police investigations and delays in the court, as well as the concerns that pre-charge bail is not being used in circumstances when it would be appropriate to do so.