Police powers: pre-charge bail

Suspects who cannot be charged whilst they are held in police custody are either released on pre-charge bail (also known as police bail), “under investigation” (RUI) or with “no further action”. At present there is a presumption against the use of pre-charge bail.

2017 reforms

Reforms pursued by the Conservative Government 2015-2017 introduced the presumption against the use of pre-charge. These reforms also introduced strict time limits on the use of pre-charge bail.

The reforms were designed to “reduce both the numbers of individuals subject to, and the average duration of, pre-charge bail”. This was supposed to address concerns that un-convicted individuals were being subjected to pre-charge bail conditions for long periods of time.

There is no official data about who is released from police custody and how they are released. However, data obtained from various freedom of information requests suggest that the number of suspects released on pre-charge bail fell substantially following the 2017 reforms. Police use of RUI increased rapidly as a result. Data shows that RUI has been used in cases involving violent and sexual offences.

Stakeholders from across the criminal justice system have been critical of the 2017 reforms. They say the use of RUI (particularly in cases involving violent and sexual offences) puts vulnerable victims at risk because pre-charge bail conditions are not imposed on suspects. There are also concerns that the rights of RUI suspects are being undermined. Investigations against RUI suspects on average take longer and the police are not required to inform suspects about their progress whilst they are ongoing.

Kay’s Law (2021)   

The current Conservative Government acknowledges the 2017 reforms caused a “number of knock-on effects” which have negatively impacted both victims and suspects. The Government consulted in 2020 on proposals to further reform pre-charge bail. It has now pledged to introduce legislation to address the problems. It refers to this as Kay’s Law, after Kay Richardson, who was murdered by her estranged husband following his release under investigation.

The Home Office says a forthcoming “major criminal justice bill” will seek to:

• Remove the presumption against the use of pre-charge bail. The Government expects the use of RUI to decline as a result. It says “no further action” is likely to be “the most appropriate course to take” in cases where pre-charge bail is not necessary or proportionate.
• Introduce a new statutory framework for pre-charge bail time limits. Under the new framework court approval will only be required to keep suspects on pre-charge bail for more than nine months. Government analysis estimates that pre-charge bail in 30% of sexual offences cases will require magistrate oversight under the proposed regime.
• Introduce separate statutory rules for the use of pre-charge bail in non-police force investigations. This will allow enforcement agencies like the National Crime Agency and Financial Conduct Authority to keep suspects on pre-charge bail for longer without court oversight. The Government says these agencies need lengthier bail time limits because their investigations are more complicated and take longer to complete.

Stakeholders have welcomed the proposals. Many (like Women’s Aid and the Police Federation) argue the 2017 reforms were a mistake. The Law Society have been more cautious. They say it will be important to ensure the police “do not fall back into the bad habits of the past and routinely put suspects on bail for extended periods.”