The Policing & Crime Act 2017 – To bail or not to bail?

The Policing and Crime Act, the critical provisions of which came into effect on 3 April 2017, creates an entirely new regime for Police bail.

Existing provisions had long been criticised for keeping suspects on bail indefinitely. Statistics taken from the Metropolitan Police area revealed that, in 2014, over 4000 people were on bail for well over 6 months. Nationally, in 2016, the average bail length across the Country was 56 days. Our experience is that many Directors and/or Senior Managers arrested following an incident have the real stigma of being ‘on bail’ for many months until a decision whether to charge is made by the Police.

In response to this criticism and the stress being caused to innocent people, the Home Secretary championed the new legislation, claiming that the reforms introduced by the Policing and Crime Act will mean that fewer people are placed on bail for shorter periods.

It is clear that this new legislation seeks to strike a balance between the need for the Police to manage investigations and not having a suspect on bail for an unacceptably long period. However, whether this can be realistically achieved is another matter altogether!

So what are the changes?

Previously, under the Police and Criminal Evidence Act, there was no limit on how long a suspect could be bailed for.

This has now changed so that the limit to pre-charge bail is just 28 days. This is extendable up to 3 months where authorised by a Superintendent and thereafter can be extended further by the Magistrates Court.

The position is slightly different in relation to investigations conducted by the Serious Fraud Office or cases which are regarded as ‘complex’. In those circumstances the initial limit to pre-charge bail is 3 months which is extendable up to 6 months where authorised by a designated officer and, again, can be extended further by the Magistrates Court.

Importantly, the Policing and Crime Act specifically permits suspects (or their lawyers) to make representations at the point where a further extension of bail is proposed and before a final decision is made.

Are these changes likely to benefit those under investigation?

What, at first blush, seems to be a positive reform may well continue a deeply unsatisfactory position for the Director or Senior Manager.

Many believe that suspects who have been arrested and bailed by the Police may still be waiting weeks, months, or even years to discover their fate.

Alternatively, and the more likely effect in our view, will be that suspects will simply not be placed on bail and, even if initially arrested, they will be released ‘without bail’ while the investigation continues. Suspects will still know that they are the subject of a Police inquiry but they will, as before, have no idea when it will end. The early signs suggest that this concern is coming to fruition as suspects are now being released under investigation for longer than bail would previously extend!

Whilst it is still early days, it seems that the Policing and Crime Act falls short of addressing the serious challenge posed by the issue of suspects waiting for an inordinate period of time to receive a charging decision. There should have been a time limit for deciding to charge or not (something which most Prosecutors would vehemently oppose).

On the positive side, psychologically, whilst the Sword of Damocles still prevails at least the stigma of being bailed to return to a Police Station at a later date, and on possibly repeated occasions, has been done away with.

It goes without saying that those Directors or Senior Managers under investigation should seek legal advice at the earliest opportunity so that any proposed extension of bail can be challenged at appropriate intervals, including at the Magistrates Court, so as to ensure that the Police and other Regulators are held to account and not allowed to simply rubber stamp repeated extensions of bail on a regular basis!

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.