On the day before Parliament dissolved to hold the general election (5 November), the Government announced a review of police bail legislation. This review comes only a few years after the last reform of police bail (in 2017) and has the potential to overhaul how suspects are released from police custody again. So why is police bail being reviewed again?

This Insight describes what police bail is, explains why the review into police bail legislation has been announced and considers arguments for the current legislation being amended.

What is police bail?

Police bail, officially known as ‘pre-charge bail’, is used when police have arrested a suspect but do not have enough evidence to charge them with a crime. If it is deemed necessary and proportionate, the police can release the suspect on ‘pre-charge bail’ whilst they continue their investigation.

When on bail suspects are required to report to the police when asked. Those on bail may also be subject to specific conditions about where they can go and who they can associate with. These rules help the police protect victims and witnesses, preserve evidence and mitigate the risk of suspects committing crime.

How was police bail reformed in 2017?

Provisions in the Policing and Crime Act 2017 overhauled police bail by introducing strict rules about when and for how long it can be used.

Before the 2017 Act, if police wanted to continue an investigation against a suspect they could no longer detain without charge, they essentially had to release them with bail. Now there is a presumption against the use of police bail in such circumstances. As set out in official police guidance, if further time is needed to investigate a suspect the police should now release them without bail “in almost all cases.”

Under the 2017 Act, police bail can only be justified if an Inspector deems it  “necessary and proportionate.” The 2017 Act did not define what “necessary and proportionate” means but the intention was for the bar to be quite high. Police guidance lists protecting “national security” or the “economic well-being of the UK” as possible reasons bail might be “necessary”.  

The 2017 Act limited the use of bail to an initial 28 days with extensions up to three months requiring authorisation from a senior officer. Any extension beyond three months now needs permission from the courts. Police guidance advises officers to make a clear investigative plan to ensure police bail is used for “the minimum period required.” 

The police should now release most suspects they need more time to investigate with a new status: released ‘under investigation’ or RUI for short. The police have no powers to require RUI suspects to report to them, no powers to place conditions on them and no time limits within which to complete their investigation against them.

Why was police bail reformed?

The 2017 police bail reforms came after a period of turmoil for police custody officers. In 2011 the High Court unexpectedly ruled that time spent on bail counted towards a suspect’s detention without charge. Assuming they have permission from the courts, the police can legally detain a suspect without charge for a maximum of four days. By establishing that bail counted towards this time limit, the High Court effectively imposed a four-day deadline on investigations against arrested suspects. Those who couldn’t be charged within the time limit would have to be released. The police would only be able to re-arrest them if they found new evidence.

The 2011 ruling cast doubt on the status of thousands of people on bail at the time. In response, the Coalition Government introduced emergency legislation to restore the police’s powers to bail suspects for longer than four days. But some serious concerns with police bail had been highlighted. It became clear that many suspects were being kept on police bail for long periods of time. This was concerning for two reasons:

  • It was detrimental to suspects’ civil liberties. Suspects could have stringent conditions placed on their lives for long periods without being charged.
  • It was encouraging lethargic justice. Both suspects and victims could be waiting months, possibly years, for a case to be resolved following an arrest.

By 2015 the now Conservative Government was proposing reforms to police bail to create “speedier justice” and a “fairer system.” These proposals would eventually be incorporated into the Policing and Crime Act 2017.

What has prompted the new review?

Since the 2017 reforms, stakeholders throughout the criminal justice system have questioned whether they are having unintended consequences. Her Majesty’s Inspectorate of Constabulary, Fire and Rescue Services (HMICFRS) raised concerns that without the use of police bail conditions, vulnerable victims (particularly victims of domestic abuse) are not being protected properly. Practitioners from Women’s Aid told HMICFRS that victims of domestic abuse are being forced into precarious housing because police bail conditions are not being used to prevent their alleged abuser from returning to their home. In response the National Police Chiefs Council issued interim guidance to police forces “reinforcing pre-charge bail as a legitimate tool” when investigating domestic abuse cases.

Lawyers are concerned that, just as under the old police bail regime, suspects are being left with uncertainty for long periods of time. The London Criminal Courts Solicitors’ Association reported that in a sample of 109 RUI cases, more than 69 had been ongoing for between 18 months and two years.

However, there is a lack of quality evidence about the impact of the 2017 reforms. Police forces are not yet required to report data on when and why they used RUI or pre-charge bail. We simply don’t know how many suspects have been released using these powers, what they were arrested for and for how long they have remained under investigation.

To gather better evidence HMICFRS has committed to conduct a thematic inspection of RUI and pre-charge bail. It is also working with police forces and the Home Office to establish how reliable data can be collected on RUI and pre-charge bail.

Is further legislation needed?

Some have already argued that the legislation needs reforming again.

The Law Society say the police should be required to explain to suspects who have been ‘under investigation’ for more than four months why there is a delay in their case.

The Joint Committee on the Draft Domestic Abuse Bill (which would become the Domestic Abuse Bill 2017-19) recommended legislation create a presumption that suspects in domestic abuse cases are released from custody on pre-charge bail, unless it is clearly not necessary for the protection of the victim.

What next?

The Government announcement in November did not say when the review into police bail will officially launch. Nor did it say whether the review is intended to propose legislation. For now, we wait for further announcements from the Home Office.

Further reading

Police detention powers, House of Commons Library.

Author: Jenny Brown is a researcher at the House of Commons Library, specialising in home affairs and justice.