Your Complete Guide to Pre-Charge Bail in the UK

Your Complete Guide to Pre-Charge Bail in the UK

If you’re arrested on suspicion of a crime in the UK, your rights state that the police cannot hold you indefinitely as they gather evidence. In many cases, building a proper case can take days, weeks, or even months. 

During this time, the authorities must decide whether to release you on pre-charge bail or via a condition known as “under investigation.” 

So, what is pre-charge bail? 

In this article, the legal experts at Holborn Adams, one of the most highly-regarded pre-charge legal firms in the UK, will attempt to go beyond simple definitions so that you can gain a proper understanding of pre-charge bail, what it means for you, and how the right legal advice can make all the difference. 

 

Pre-Charge Bail, RUI, and the Policing and Crime Act 

The growing use of pre-charge bail as a legal tactic can be tied to the Policing and Crime Act of 2017, which aimed to address concerns about suspects being kept on pre-charge bail for extended periods without sufficient oversight. 

The law introduced several pre-charge bail changes, including a presumption against it, unless it is deemed both necessary and proportionate. It also placed stricter controls on bail periods and raised the level of authority required to impose or extend bail. Most importantly, it sets pre-charge bail time limits. That said, there is the possibility for pre charge bail extensions, which police can apply for if they feel they need more time to investigate. 

It’s important to understand that pre-charge bail and released under investigation (often abbreviated as RUI) are not the same thing. 

The main difference between pre-charge bail and being RUI is that the former can include conditions, whereas RUI does not. In many cases of RUI, suspects will end up in legal limbo for weeks, months, or even years in some cases. 

Does pre-charge bail mean you will be charged? No. However, it does not mean you are in the clear either. 

 

What is Pre-Charge Bail in the UK? 

Pre-charge bail is a process where an individual arrested and detained by the police is released from custody to allow the investigation to continue without the need for further detention. 

In situations where the UK police have insufficient evidence to charge someone but still wish to keep them under certain restrictions while continuing their investigation, pre-charge bail may be seen as a necessary option. 

When you are released on pre-charge bail, the police can attach specific conditions to protect witnesses or prevent further offences. These conditions may include things like not contacting certain individuals, avoiding specific locations, or complying with curfews. You will also most likely be provided with a set return date at which you must reappear at the police station.

The authorities see this as a way of mitigating risks whilst still enacting a fair amount of control through the investigation. Depending on the circumstances, conditions, and nature of the accusations, it’s natural to feel apprehensive about the situation. 

 

Concerns and Criticisms Regarding Pre-Charge Bail

Many people ask us if pre-charge bail is better than RUI. To understand this, you need to know that both pre-charge bail and RUI have faced plenty of criticism in recent years. 

Lawyers and solicitors, in particular, have long expressed our concerns about the indefinite nature of RUI, which can leave suspects in a state of uncertainty for extended periods of time. This prolonged uncertainty is not only stressful for suspects, but also any alleged victims and the legal professionals involved. But that’s not all. Many senior police leaders have also raised concerns about RUI, noting that it can give officers an excuse to delay investigations. 

In the UK, pre-charge bail is often presented as a better alternative to RUI. However, the crux of the issue tends to lie in the speed of investigations. Advocates for greater police discretion in using pre-charge bail successfully pushed for changes in the Police, Crime, Sentencing, and Courts Act, also known as the PCSC. 

Nonetheless, pre-charge bail remains controversial because it restricts the liberty of individuals who haven’t been charged with a crime. For most lawyers, the punitive nature of pre-charge is a big sticking point. By imposing various restrictive conditions, it stigmatises suspects while remaining largely unenforceable. 

After all, breaching pre-charge bail conditions is not a criminal offense, meaning suspects can be arrested for breaches, but not actually charged for them. This creates a confusing legal environment where the police might arrest someone for a violation but lack the evidence to charge them with the original offence. 

 

Changes to Pre-Charge Bail 

Before the Policing and Crime Act of 2017, suspects could be kept on pre-charge bail for long periods under strict conditions, which led to a wealth of well-founded concerns about fairness and justice. As stated above, the 2017 Act introduced a presumption against pre-charge bail unless necessary and proportionate, limited the initial bail period, and required Magistrates’ Court approval to extend bail beyond three months.

These changes resulted in a decrease in the use of pre-charge bail, with RUI becoming more common. However, this shift brought its own problems, particularly regarding the safeguarding of complainants. After all, that extended “limbo period” mentioned earlier doesn’t just affect suspects, but can potentially put complainants at risk.

More recent legislative changes now encourage the use of pre-charge bail when it is deemed both “necessary” and “proportionate,” essentially reversing the presumption against it. This means that if you are arrested and released, you are more likely to be placed on pre-charge bail than under RUI. 

 

Who is Eligible for Pre-Charge Bail? 

Let’s focus for a moment on the terms “necessary” and “proportionate.”

This assessment, made by the custody officer, includes considering any and all conditions of bail that would be imposed. Moreover, that custody officer must consider any representations made by either the suspect or their legal representation. 

Factors such as ensuring the suspect will surrender to custody, preventing further offences, safeguarding complainants, and witnesses, protecting the suspect (especially if vulnerabilities are identified), and managing public risk are all considered. This means that pre-charge bail will only be granted if the CO feels these factors justify it. 

As one can probably surmise, this can create problems, particularly for individuals who do not have proper, well-informed legal representation. 

 

Conditions Related to Pre-Charge Bail in the UK

Those conditions we mentioned earlier are another major factor to consider. As previously mentioned, pre-charge bail can come with various conditions aimed at mitigating risks for law enforcement.

In theory, these conditions will only be imposed when they are necessary to prevent the suspect from failing to surrender to custody, committing further offences, interfering with witnesses, or obstructing justice. In fact, in some cases, these conditions are imposed to protect the suspect themselves, particularly if they are vulnerable, or in the case of minors.

The investigating officer plays a crucial role in proposing these conditions, but – again – the final decision rests with the custody officer. 

 

Pre-Charge Bail Time Limits and Extensions

The initial pre-charge bail period can last up to three months from the day after a suspect’s arrest. However, the initial bail period can be up to six months in certain cases involving organisations like the Financial Conduct Authority or Serious Fraud Office. Once again, a custody officer is responsible for authorising the initial release on pre-charge bail, which will be based on a risk assessment and rationale provided by the investigating officer.

If further investigation is needed, the bail period can be extended up to six months by an inspector and up to nine months by a superintendent. Beyond nine months, any further extension requires the approval of the Magistrates’ Court. This adheres to specific procedures outlined in the Criminal Procedure Rules and the Police and Criminal Evidence Act.

During this process, the custody officer must consider whether the applicable bail period is still valid, whether representations from the suspect or their legal representative have been sought, and whether the complainant’s views have been considered. These steps are designed to ensure that pre-charge bail is only extended when absolutely necessary. But again, without proper legal representation, the accused may not have anyone to mount an effective argument against unwarranted extensions. 

 

Conclusion

Under English law, those accused of crimes should remain free until they admit guilt or are proven guilty in court. While pre-charge bail provides a mechanism for the police to continue their investigations, it also imposes restrictions on individuals who have yet to be actually charged with a crime. 

It’s true that this system is designed to try and balance the need for ongoing investigations with the rights of suspects, it can sometimes fall short of protecting you. After all, what happens after pre charge bail?

If you’ve been released on pre-charge bail or are under investigation, it’s important to take the situation seriously. Contacting an experienced pre-charge criminal law solicitor can make a significant difference in your case.

Keep in mind that involving a solicitor is not an admission of guilt but a vital step in ensuring that your rights are protected, the police comply with their legal obligations, and your defence is properly prepared. 

Remember, you’re entitled to legal representation the moment you enter the police station. Nobody should have to attempt to navigate the complexities of pre-charge bail on their own. 

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