To bail or not to bail? – The question before Parliament as it considers new proposals under the Policing and Crime Bill

14 November 2016

The forthcoming Policing and Crime Bill introduces new provisions for Police bail in an attempt to prevent suspects from being kept on bail indefinitely, without charge. However, what do these changes mean for the suspect and how might they impact the effectiveness of the Police when investigating crime?

The Current Regime

Under the current regime for Police bail, as contained in PACE, a suspect will normally be granted police bail following an arrest where:

  • there is insufficient evidence to charge him/her with an offence and the Police are required to continue to investigate the offence, without the suspect being held in police custody;
  • the Police consider that there is sufficient evidence to charge him/her, but the case needs to be referred to the CPS for a charging decision.

Significantly, there are no time limits on the imposition of police bail under the current statutory regime. As a result, suspects can be subjected to police bail (and any conditions thereof) indefinitely, and sometimes for years, before they are informed whether or not they will be charged with a criminal offence.

Following a recent spate of high profile suspects being held on police bail for lengthy periods of time without ever being charged, the current regime has received considerable criticism

(see John Harding’s blog: Changes to pre-charge bail in Policing and Crime Bill – about time). It is exactly this criticism which the Policing and Crime Bill aims to address. 

The Proposals

The Policing and Crime Bill is currently passing through parliament and introduces two important changes in the statutory regime for pre-charge bail. 

First and foremost, the Bill contains a presumption for the release of a suspect without bail.  As a result, bail will only be imposed in cases where it is considered necessary and proportionate.  While there currently is a mechanism for the Police to release suspects without bail and without charge under the Police and Criminal Evidence Act 1984, this provision is seldom used.

Second, the Bill proposes to limit Police bail to a maximum of 28 days (for most cases) and an extension of bail beyond the 28 days may be granted by a Magistrates’ Court.  There will be no limit on the number of extensions that may be granted. This would mean that where the Police are satisfied that bail is necessary and proportionate they would have a further 28 days to investigate an offence and/or seek the appropriate charging advice from the CPS.  In the event that they are unable to work within the 28 day time frame, the Police would be required to make an application to the Magistrates’ Court for an extension.

An amendment suggested in the House of Lords would increase this applicable bail period from 28 days to 56 days on the basis that, due to cuts to the police budgets, it would be difficult for meaningful investigations to be completed within the original time-frame. However, the Lords are currently in disagreement about this and it is yet to be seen which applicable bail period will be adopted.


The Police should be more willing to exercise their discretion and release suspects without charge and without bail.  It is all too common for the Police to bail suspects and impose onerous bail conditions rather than simply releasing them.  The practice of routinely imposing bail (and resulting conditions) has meant that the Police and, more widely, criminal justice practitioners have become relaxed about the almost customary infringement on a suspect’s liberty. Instead, the Bill would require Officers to consider whether bail is necessary and, if so, whether it is proportionate. 

While this development is to be welcomed, it is regrettable that primary legislation is required to enforce such a fundamental principle.  Moreover, with the emphasis on limiting the applicable bail period rather than the length of time for Police enquiries, this change is unlikely to provide any practical benefit to suspects who may remain subject to an investigation indefinitely – albeit without the status of being “on bail”.

Although restricting the applicable bail period will provide certainty for suspects who might otherwise be kept on bail indefinitely, the 28 days simply will not afford the Police enough time to investigate and seek charging advice in most cases. Even if the alternative proposal of 56 days were to be implemented, it is unlikely that this would make a significant difference. Unfortunately, the proposed procedure would make applications to the Magistrates’ Court routine. This would eat away at Police time and resources, consume the Court schedule and create additional work for defence practitioners.

The purpose of these changes to the legislation - to reduce the amount of time that suspects are on Police bail - is certainly admirable. There is clearly a genuine concern that a number of suspects have been held on Police bail for too long before being charged with an offence, or formally told that they would face no further action.  Accordingly, the Home Office investigated this issue and developed what they considered to be a suitable solution through legislation. 

However, the method chosen to address the problem overlooks the reality of the situation.  The issue is not with the law itself but rather how the law is applied and the limited resources available to the Police and CPS. The reason why suspects are routinely held on bail for so long is that the Police are inadequately equipped to investigate offences, particularly where digital evidence is involved.  In a recent study by the College of Policing, it was found that 60% of cases were bailed initially for over 28 days.  Moreover, 60% of cases where suspects were bailed for more than 90 days included some form of forensic analysis, with phone downloads being the most frequent type of forensic analysis given as a reason for bail. 


In this regard, policy makers and legislators have failed to properly analyse the cause of the delays and to recognise the reality of twenty-first-century criminal investigations, so many of which now require a forensic examination of mobile phones, computers and open source material. Moreover, when such data is recovered it must then be reviewed by investigators and prosecutors. This all takes time. HMIC’s report, ‘PEEL: Police efficiency 2016’ examined the effectiveness of Police forces across the country, concluding that “digital skills remain a significant gap”, and that the Police needed to create “clear coherent future plans, underpinned by investment in technology”. Therefore, the Government must start to appreciate that the Police and the criminal justice system as a whole cannot do more work with fewer resources.  Until this simple problem is understood, it will not matter whether the police decide to bail or not to bail a suspect. Nor will it make much of a difference whether the applicable bail period is 28 days or 56 days. Investment in the resources and the technology available to Officers is the only way to ensure that criminal investigations are properly conducted and cases are properly reviewed and prepared. This may even have the effect that fewer weak cases are ultimately brought to trial.  After all, appropriately resourced investigators and prosecutors benefit everyone in the criminal justice system, not least suspects. 

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