Overhauling the Bail Regime – Big Changes Introduced by the Police, Crime, Sentencing and Courts Act 2022

Changes to the bail regime introduced under the Police and Crime Act 2017 (‘the 2017 Act) resulted in a drop in the number of suspects being released on pre-charge bail. A perceived presumption against the grant of bail meant that suspects were increasingly released under investigation (‘RUI’). Criminal practitioners will be aware that the key distinction is that when a suspect is released under investigation, they are released unconditionally; pre-charge bail, while it may be unconditional, can equally have conditions attached, such as residence or non-contact.

This rise in the number of suspects being released unconditionally has led to two main concerns. First, from a complainant’s perspective, where those being investigated for serious offences are released unconditionally, protecting witnesses and complainants becomes harder. Second, from a suspect’s perspective, being released under investigation can lead to delays in concluding an investigation. With no bail time limits, officers investigating offences do not need to seek authority to extend bail. This means that internal police oversight of investigations is greatly reduced, and case management is negatively affected.

The Police, Crime, Sentencing and Courts Act 2022 (‘the 2022 Act’) therefore seeks to overhaul the current bail regime and reverse this perceived presumption against bail. It introduces several changes designed to shift the presumption back to a person being released on bail subject to conditions rather than ‘under investigation’ with no conditions. It also extends the length of time under which a person can remain on bail, thereby allowing the conditions to remain in place for a longer period.

The following changes introduced by Schedule 4 of the 2022 Act came into effect on Friday 28^th October 2022 and are now in force.

The new presumption in favour of bail

Part 1 of Schedule 4 of the 2022 Act amends s30A of PACE (release of a person arrested elsewhere than at a police station) to reintroduce the words ‘on bail’ which had been removed by the 2017 Act (emphasis added): ‘…a constable may release on bail a person who is arrested or taken into custody’.

Section 34 of PACE (limitations on police detention – i.e. where grounds for detention no longer apply, such as a time limit expiring) is also amended to introduce a presumption of release on bail. Unamended, the section reads (with emphasis)

‘(5) A person whose release is ordered under subsection (2) above shall be released

(a)without bail unless subsection (5A) applies, or

(b)on bail if subsection (5A) applies.’

Amended, the same section now reads in its entirety (again with emphasis):

‘(5)A person whose release is ordered under subsection (2) must be released on bail if subsection (5A) applies.’

Part 1 of Schedule 4 of the 2022 Act also makes very similar semantic changes to s37 of PACE (duties of a custody officer before charge), s41 (limits on the period of detention without charge), s42 (release following continued detention without charge, s43 (warrants of further detention), and s44 (release following an extension of warrants of further detention). In each case, the emphasis of the wording is amended in favour of a grant of bail, as with the change to s34 above. The effect of these changes is clearly to steer the custody officer towards granting bail and away from releasing a suspect under investigation.

More officers able to authorise bail

Also under Part 1 of the 2022 Act, s30A PACE (release of a person arrested elsewhere than at a police station) is amended to allow a ‘custody officer’ to authorise the grant of bail, rather than ‘a police officer of the rank of inspector or above’. Custody officers must be of at least the rank of sergeants under s36(3), although their functions can be performed by an officer of any rank under s36(4).

However, specifically for authorising the grant of bail, the 2022 Act widens the statutory definition of a custody officer under a new s36(7C) to include any officer performing the functions of a custody officer. The effect of this is that whereas previously only an officer of at least the rank of inspector could authorise bail, now any officer acting as a custody officer can authorise bail, even a constable.

The new concept of alleged victims

The new concept of an alleged victim is introduced under a new s30CA(6):

‘a person (“P”) is an alleged victim of an offence if—

(a)an allegation has been made to a constable or other person involved in the investigation of the offence that P has suffered physical, mental or emotional harm, or economic loss, which was directly caused by the offence, and

(b)P is an individual.’

Part 2 of Schedule 4 introduces Factors to be taken into account in deciding whether to grant pre-charge bail. These are brought in at s30A(1B) and stipulate that the following are relevant factors in making the decision:

‘(a)the need to secure that the person surrenders to custody,

(b)the need to prevent offending by the person,

(c)the need to safeguard victims of crime and witnesses, taking into account any vulnerabilities of any alleged victim of, or alleged witness to, the offence for which the person was arrested where these vulnerabilities have been identified by the constable,

(d)the need to safeguard the person, taking into account any vulnerabilities of the person where these vulnerabilities have been identified by the constable, and

(e)the need to manage risks to the public.’

The same factors are also incorporated into s50A (interpretation of references to pre-conditions for bail). Again, the emphasis is changed in favour of granting bail rather than releasing a suspect under investigation. Notably, ‘the need to safeguard victims of crime and witnesses’, including an alleged victim, is now given as a statutory factor.

Part 3 of Schedule 4 amends section 30CA (bail under section 30A: variation of conditions by police). It imposes new duties on an investigating officer considering whether to amend bail conditions:

‘(4A)If it is reasonably practicable to do so, the investigating officer must seek the views of the alleged victim (if any) of the relevant offence on—

(a)whether any of the conditions that are relevant conditions should be varied under subsection (1), and

(b)if so, what variations should be made to those conditions.

…

(4C)If any of the conditions which are relevant conditions are varied under subsection (1), the investigating officer must, if it is reasonably practicable to do so, notify the alleged victim of the variations.

(4D)If the alleged victim of the relevant offence appears to the investigating officer to be vulnerable, subsections (4A) and (4C) apply as if references to the alleged victim of the offence were to a person appearing to the officer to represent the alleged victim.’

Even more strongly, a new section 47ZZA is introduced, titled ‘duty to seek views of alleged victims on conditions of pre-charge bail’. In short, an investigating officer must now, if it is reasonably practical, seek the views of the alleged victim on the imposition of conditions that relate to the safeguarding of the alleged victim.

How these new duties will work practically remains to be seen: an alleged victim might express a strong view that stringent conditions should be imposed or remain in place, but this might be met with equally strong considerations in favour of modifying or not imposing conditions. How police will balance those factors is not yet clear.

Time limits on pre-charge bail extended

Perhaps the most significant change is to extend the time limits for initial bail periods. This is achieved by overhauling several provisions at s47 onwards of PACE. These changes are necessarily technical and complex, and practitioners are advised to review the full changes found in Part 4 of Schedule 4 of the 2022 Act.

Most significantly, s47ZB of PACE is amended to extend bail time limits in the vast majority of cases. Under the previous regime, the initial time limit for cases investigated by the SFO was 3 months starting from the bail start date (the day after the day of arrest), and in any other case, 28 days. The new limits are 6 months for a case investigated by the SFO, FCA, HMRC, or NCA, and 3 months for any other case.

In each case, any officer working for the relevant investigatory authority can now confirm a case as belonging to their organisation (e.g. an HMRC officer can confirm that their investigation is ‘an HMRC case’). This represents an expansion of the rules, not least because under the previous regime, only a ‘senior officer’ working for the SFO could confirm this.

Section 47ZD is amended so that a ‘relevant officer’ of a rank of inspector or above (formerly a ‘senior officer’) can extend the bail period in standard cases to a period of six months (formerly three months). Where bail is extended under s47ZD, further pre-charge extensions are permitted under new s47ZDA. A senior officer can now authorise bail up to 9 months from the bail start date for these ‘standard cases’ (those that fall into the new ‘any other case’ category under 47ZB).

Where one of these standard cases is a ‘designated case’ (a case deemed by the Director of Public Prosecutions to be ‘exceptionally complex’) this maximum time may be set at 12 months from bail start date under amended section 47ZE. Safeguards are provided by 47e(5) and (6) under which the officer must inform the suspect’s legal representatives before the extension and then consider any representations made.  In this case, the extension can only be authorised by an officer of the rank of commander or assistant chief constable or above.

New s47ZDB similarly allows senior officers (or their equivalents) from HMRC or the FCA, NCA or SFO to extend a suspect’s maximum bail time in one of their cases to 12 months, although here there is no pre-requisite that an extension is already present and yet to elapse. Section 47ZF is amended to double the time limits which a court can authorise an extension of bail: to 12 months for standard cases, and 18 months for designated cases.

Court powers to extend bail

Section 47ZF governs extensions to bail time limits on application to the Magistrates’ Courts. It is now amended to cover standard cases where bail is extended under new s47ZDA, non-standard cases where bail is extended under new s47ZDB, and designated cases under s47ZE.

The time limits under which a court can authorise an extension of bail are now doubled: to 12 months for standard cases, and 18 months for non-standard and designated cases. These limits are extended to 18 months and 24 months respectively where in long running investigations, it is unlikely a charging decision will be made before the bail period elapses.

Conclusion

The effect of these changes is to steer officers towards granting bail rather than releasing suspects under investigation. It seems likely that suspects will now also spend longer on bail. How these changes are brought into effect practically, and how police officers cope with the extra administrative burden, remains to be seen.