The Policing and Crime Act 2017 received royal assent on 31st January 2017, and came into force on 3rd April 2017. One significant change that the Act brings into force is that concerning police pre-charge bail. Pre-charge bail is used by the police when they have questioned a suspect, and need time to continue their investigations before determining whether or not to charge them.

Limits to Pre-Charge Bail

Previously, under the Police and Criminal Evidence Act 1984 (PACE) there was no legal limit on how long a suspect could be bailed for. In comparison, chapter 1 of part 4 of the Policing and Crime Act 2017 limits pre-charge bail to just 28 days. This is extendable up to 3 months where authorised by a superintendent. It can then be extended further if judicial authorisation is granted: a decision by a single justice of the peace on the papers will suffice in this instance. In such circumstances the suspect is entitled to make representations that their pre-charge bail should not be prolonged. In particularly complex cases dealt with by the Serious Fraud Office, the central casework units of the Crown Prosecution Service, and the Financial Conduct Authority it will be possible to extend bail administratively to a total of six months without obtaining judicial authorisation.

Previously, a custody sergeant or an ordinary police officer could make a bail decision, however under the new legislation the decision must be made by an officer of the rank inspector or above.

The new Act also presumes that bail cannot be imposed unless it is necessary and proportionate to do so. Where bail is not considered to be proportionate police intervention, the suspect will be released 'not on bail under investigation'.

Bail conditions will still be imposed as before, yet it is emphasised that they must be necessary and proportionate. If such conditions are breached, the suspect can be re-arrested, although the breach in itself will not constitute an offence.

The Need for Change

The former Home Secretary Theresa May recognised the need for change, and the reforms were developed from a public consultation launched by May in 2014. This follows a series of high profile cases, often concerning historical sex abuse and phone hacking, where public figures, such as Paul Gambaccini, were kept on bail for long periods of time without charge.

The current Home Secretary Amber Rudd has championed the new legislation: "Pre-charge bail is a useful and necessary tool but in many cases it is being imposed on people for many months, or even years, without any judicial oversight - and that cannot be right. These important reforms will mean fewer people are placed on bail and for shorter periods. They will bring about much-needed safeguards - public accountability and independent scrutiny - while ensuring the police can continue to do their vital work."

David Tucker, Crime Lead at the College of Policing, has also outlined the importance of the reforms: 'The new legislation is a significant change for policing and has sought to strike a balance between the need for police to manage investigations and not leaving a person suspected of a crime on bail for an unacceptably long period.'

Implementation

The new legislation came into force on 3rd April 2017. Assistant Chief Constable Darren Martland, the National Police Chief's Council lead on pre-charge bail, has emphasised that chief officers have worked closely with the Home Office and the College of Policing to ensure that the forces are aware of the reforms and ready to implement them. The legislation will be applied across all 43 police forces in England and Wales. Transitional powers do not however apply in respect of the Act, and any suspects currently on bail will continue to be dealt with under the old legislation and the time limits outlined above will not apply.

Criticisms

Many, particularly from inside the police force, have heavily criticised the new legislation. It has been argued that in reality, those who have been arrested and are bailed may still be waiting years before they are charged. Such people are of the view that the only tangible difference is that once the new provisions are in place, the police will encounter additional administrative burdens and paperwork. The average bail length is 56 days, and therefore it is likely that a large proportion of cases will require a bail extension. In addition, research by the College of Policing has found that the length of bail is often the result of factors that police forces cannot control, such as gathering third party statements or conducting forensic investigations.

Andy Ward, the general secretary of the Police Federation of England and Wales, has stated that the Act will mean a 'massive change' in custody culture within the police force. Ward argues the new limit is unrealistic and unachievable. For example, cyber crime cases require 'computers to be seized and equipment to be interrogated to gain evidence. The results for detailed forensic tests also take some time to come back.'

The drafting of the legislation has also been heavily criticised. Ian Kelcey, senior partner at Kelcey & Hall, has commented that the legislation is 'about as badly drafted as I have come across.' The Police Federation agree, stating that the vague wording of the legislation is likely to mean that the officers will struggle to determine whether extending bail beyond 28 days will be 'proportionate'. The need to determine what constitutes proportionate is likely to lead to inconsistencies between different police forces.

In general, many believe that a more practical solution would be to provide police officers with more training on the decisions as to whether or not an arrest is necessary. This in itself is likely to prevent unnecessarily lengthy bail periods.

Effect on solicitors

Solicitors attending a Law Society criminal seminar on 6th April 2017 were warned that the new legislation would not affect their costs. Solicitors will not receive an additional fee should their clients be called back to the police station after being released. Richard Atkinson, managing partner of Tuckers, has confirmed that 'The new [criminal legal aid] contract makes clear that when you have already provided advice and assistance in relation to a matter, any further advice and assistance is not subject to a separate application. 'You cannot claim a separate fee. You add on the time you have spent. If that takes you past the 'escape' threshold, then you can claim an escape fee.'

Conclusion

The issues with the previous legislation concerning pre-charge bail were known to many, including the police. There are numerous examples of suspects being kept on bail for an unreasonable amount of time, and as a result few dispute that reform was necessary. The Policing and Crime Act 2017 has however been met with a significant amount of criticism, particularly from police officers. At present, the effectiveness of the new legislation is unknown. Only time will tell whether the Act will in reality reduce the amount of time the average suspect spends on bail, or whether it will simply provide a greater administrative burden on police forces and solicitors.

Contact

If you believe that you have been kept on bail for an unnecessary and disproportionate amount of time, please contact one of our experienced solicitors from the Business Crime and Regulatory team for advice.