Policy paper

Pre-charge bail: Police, Crime, Sentencing and Courts Act 2022 factsheet

Updated 20 August 2022

1. What are we going to do?

The Act encourages the police to use pre-charge bail in every case where it is necessary and proportionate by removing the perceived presumption against pre-charge bail.

Pre-charge bail decisions will be made with specific reference to safeguarding the victim and any witnesses, particularly where they are vulnerable.

The Act also introduces new pre-charge bail time periods for suspects which are more balanced and proportionate. Victims will be better protected through a new requirement to seek the views of victims on pre-charge bail conditions relating to their safeguarding.

The Act also introduces a three hour pause on the detention clock so that arrests for breach of pre-charge bail conditions or “failing to answer” bail do not have a negative effect on the overall custody clock for the original offence.

We are empowering the College of Policing to issue statutory guidance to help establish consistency across all forces.

These reforms are known as ‘Kay’s Law’ in memory of Kay Richardson who tragically lost her life at her ex-partner’s hands while he was released under investigation, rather than on bail.

2. How are we going to do it?

The Act establishes a neutral position within the legislation, by removing the presumption against pre-charge bail. This is designed to encourage its use when necessary and proportionate to do so, based on each case’s individual circumstances and the list of risk factors now set out in legislation. Custody officers, who are independent of investigations, will be able to authorise the first period of pre-charge bail to a period of three months in standard police cases. Further extensions in these cases will require approval from an officer of the rank of Inspector or above to six months, and a Superintendent or above will need to authorise any extension to nine months. Judicial approval will then be sought to extend beyond nine months. We will introduce a new duty to inform victims of changes to pre-charge bail conditions and to seek views from them on what conditions concerning their safeguarding look like, ensuring that victims are more involved in the process. This will enable officers to consider any safeguarding concerns to ensure appropriate measures are in place. The Home Office will work with the College of Policing to assist with their statutory guidance on pre- charge bail which will help ensure consistency in the handling of cases in police forces across England and Wales.

3. Background

Pre-charge bail is a tool used by the police to manage suspects who have been arrested on suspicion of an offence but where more time is needed to complete the investigation before a charging decision is made. This bail is often accompanied by a set of conditions. The investigation can continue whilst the suspect is on pre-charge bail. In 2017, the Government legislated through the Policing and Crime Act 2017 (“the 2017 Act”) to address concerns that individuals were being kept on pre-charge bail for long periods, sometimes with strict conditions. Changes introduced through the 2017 Act brought in a presumption against the use of pre-charge bail unless necessary and proportionate, and clear statutory timescales for the initial imposition and extension of bail, including the introduction of judicial oversight for the extension of pre-charge bail beyond three months. After those changes were implemented, the use of pre-charge bail fell, mirrored by an increasing number of individuals ‘released under investigation’ (RUI).

This change has raised concerns that bail is not always being used when appropriate, including to prevent individuals from committing an offence whilst on bail or interfering with victims and witnesses. Other concerns focus on the potential for longer investigations in cases where bail is not used and the resultant adverse impact on the courts. In February 2020, this Government launched a consultation on pre-charge bail which sought to assess concerns raised around the impact of the current rules on the police, victims, those under investigation and the broader criminal justice system. The response to the consultation was published in January 2021 and the Act now implements reforms to the pre-charge bail system which will simplify the existing regime and provide assurance and safeguards for victims of crime and the public.

4. Frequently asked questions

4.1 What are the changes to the pre-charge bail system aiming to achieve?

The Government is reforming the pre-charge bail system to make it more effective for victims and suspects. The removal of the presumption against bail and changes to the timescales will ensure that bail is consistently used in cases where it is necessary and proportionate. We also want victims to be informed and given the opportunity to voice their opinion on the conditions attached to bail to ensure that they feel confident with any safeguarding protections which are put in place.

4.2 What will happen as a result to the process of Released Under Investigation (RUI)?

The removal of the presumption against pre-charge bail is expected to lead to an increase in the number of those placed on bail and a decrease in the number of those subject to the RUI process. This is good news for both victims and suspects, as RUI does not include statutory timescales, accountability for the police or regular communication with victims and suspects. RUI may still be appropriate in a small number of cases and will be available at the discretion of the police, where bail is not considered necessary and proportionate and “no further action” is not appropriate.

4.3 Will these changes place additional burden on police and law enforcement agencies?

The Government expects there to be a reduction in suspects released under investigation (RUI) and more suspects to be put on pre-charge bail. This will allow for further protection of victims, clearer timescales for suspects, and more confidence in the system from the public. We have also adjusted the timescales and authorisation levels of pre-charge bail to recognise operational realities.

We will continue to work closely with the policing sector to ensure that these provisions will be applied consistently across forces and that police officers understand what is required of them.

4.4 Won’t these changes mean that people are on bail for longer?

The changes to timescales have no effect on the overall length of time an individual may be on bail; they amend the procedure for authorising release on bail. The Government expects forces to continue to conduct their investigations in an expeditious manner. Where it is clear that forces cannot complete investigations within the initial bail period, an authorisation will need to be sought for extension with full justification for the decision.

4.5 What is the Government hoping to achieve with the changes to timescales around bail and the level of sign-off ?

The initial pre-charge bail period of three months will provide space for officers to conduct and conclude their investigations within this first period in the majority of cases. The bail decision will be made by a custody officer, who has the necessary skills and experience in making risk-based decisions, as well as independence from the investigation itself.

Two further extensions will be available; from three to six months by an Inspector and from six to nine months by a Superintendent. This will distribute the administrative burden of making bail extension decisions more proportionately.

Any further extensions beyond nine months in standard cases will require authorisation from a magistrate. Judicial oversight remains an important check on the length of investigations and the necessity of keeping an individual on bail and magistrates will continue to make these key decisions on those more complex and/or lengthy cases which reach them at the nine month point.

4.6 Why is the Government making changes so soon after the 2017 reforms?

Although a number of reforms were made in 2017, the Government feels there is more to be done to make this process as efficient as possible. Following calls from the policing sector and victims’ organisations, we launched a public consultation and intend to deliver on the results. We have listened to the concerns and are seeking to reform the system to create a more effective legislative framework around pre-charge bail, helping to protect the public whilst ensuring the police can continue to do their vital work.

4.7 What is the Government doing to help victims?

The new reforms to the pre-charge bail system will place greater emphasis on the protection of victims and witnesses by removing the presumption against pre-charge bail, thereby ensuring that suspects are released with appropriate conditions to safeguard victims, where this is necessary and proportionate. This will include a set of risk factors to be considered when making decisions on whether to release an individual on bail – with reference to the vulnerability of any victims and witnesses. There will also be a new duty to seek the views of the victim on the proposed pre-charge bail conditions to ensure that conditions are robust and victims are involved in this process.

4.8 When will these changes be implemented?

Following consultation with the policing sector, the pre-charge bail reforms will be implemented six months after Royal Assent of the Act. This will allow enough time for data systems, training and guidance to be put in place. The Government will continue to monitor the effect and impact of these reforms.