BAIL – The Criminal Procedure (Amendment) Rules 2023

I

Introduction

Pre-charge bail (also known as police bail) is a process by which a person is released from custody after being arrested pending further investigation – whilst also possibly being subject to certain bail conditions. They are required to return to the police station at a specified date/time whereby they are given an update on their case. At this point, they may be charged, have their bail extended, be Released Under Investigation (RUI), or be released with No Further Action (NFA).

The Government legislated through the Policing and Crime Act 2017 to address concerns that individuals were being kept on pre-charge bail for lengthy periods. The reforms introduced a ‘presumption’ against pre-charge bail unless it is necessary and proportionate in all circumstances. They also brought about clear statutory timescales and processes for the initial imposition and extension of bail, including the introduction of judicial oversight for the extension of pre-charge bail beyond 3 months.

After these reforms came into force in April 2017, the use of pre-charge bail fell – this was reflected by an increasing number of individuals who were RUI’d. This raised concerns that pre-charge bail was not always being used where it might have been appropriate.

The Criminal Procedure (Amendment) Rules 2023 (CPAR 2023) have now brought about significant changes to the way that pre-charge bail is managed. This will be expanded on below.

Why is this?

These reforms have been brought about for a multitude of reasons. A major driving force is to dissuade the use of RUI which has been subject to criticism since its introduction in 2017. This was partly in response to the murder of Kay Richardson, who was killed by her ex-partner while he was RUI and not subjected to bail conditions.

Building on this, another downside to RUI is that many people have been RUI’d for lengthy periods – sometimes for over a year – without knowing anything about the status of their investigation. It can be argued that being RUI leaves people in an unfair ‘legal limbo’ where they don’t quite know where they stand for extended periods of time.

The new system

The CPAR 2023 has modified how pre-charge bail works.

Sections 47ZA and 47ZB of the Police and Criminal Evidence Act 1984 limit the period for which a person may be subject to pre-charge bail. This period may be extended in specific circumstances by a senior police officer/Court. This was overhauled in 2020 by the Police, Crime, Sentencing and Courts Act 2022 which lengthened the time period for which people can be subject to pre-charge bail.

Additionally, pre-charge bail can also be extended by police officers of rank inspector and above for up to 6 months, and extended by officers of rank superintendents or above by up to 9 months:

“Under sections 47ZC and 47ZD of the 1984 Act, in a standard case the applicable bail period may be extended on the authority of a police officer of the rank of inspector or above until the end of 6 months from the bail start date. Under section 47ZDA the applicable bail period may be further extended on the authority of a police officer of the rank of superintendent or above until the end of 9 months from the bail start date.”

Building on the above, the CPAR 2023 has now further extended the period to which a person can be kept on pre-charge bail by a Magistrates’ Court (and others). They replaced all references to ‘12 months’ in The Criminal Procedure Rules 2020 to ‘24 months’, such that it now states:

“Under section 47ZF of the 1984 Act, on an application made before the date on which the applicable bail period ends by a constable, a member of staff of the FCA of the description designated by its Chief Executive, an officer of Revenue and Customs, an NCA officer, a member of the SFO or a Crown Prosecutor, a Magistrates’ Court may authorise an extension of that period –

1. (a) from a previous total of 9 months to a new total of 12 months or, if the investigation is unlikely to be completed or a police charging decision made within a lesser period, a new total of 18 months (following extension under section 47ZDA of the Act);
2. (b) from a previous total of 12 months to a new total of 18 months or, if the investigation is unlikely to be completed or a police charging decision made within a lesser period, a new total of 24 months (following extension under section 47ZDB or 47ZE of the Act).”

What does this mean?

For the aforementioned reasons, a major function of the newly introduced CPAR 2023 is that it will promote the use of pre-charge bail as opposed to RUI, due to the fact that pre-charge bail can now be in effect for longer periods, i.e. up to 24 months. It can also be extended purely by the prerogative of inspectors/superintendents and above, as mentioned above. Under previous rules, the police could only release a person on pre-charge bail for up to 3 months – any extension beyond this period required judicial oversight via an application made to the Magistrates’ Court.

One concern is that the police now have a greater deal of control over an individual’s liberty before they have even been formally charged with a crime. This is because they are able to impose bail conditions which can now influence said individual for much longer periods without necessarily having to seek judicial oversight.

On the other hand, the new rules are expected to have multifaceted benefits. For instance, upon release from custody, people will have much more clarity regarding their case moving forward; pre-charge bail involves firm deadlines so that people know how long they are on bail for and ensures that they are informed about the status of their case. Additionally, the timeframes set on pre-charge bail may encourage the police to work more expeditiously than if the individual was RUI’d (which has no set deadline). Furthermore, another perspective is that it would provide additional safety measures to potential complainants through the use of bail conditions.

The take-home message is that we should be seeing fewer people who are RUI’d, which moving forward, should provide people with much more clarity regarding their case after being arrested and before potentially facing charges.

Jamahl Franklin