To address concerns about individuals being placed on pre-charge bail for long periods, the Policing and Crime Act 2017 introduced a presumption against pre-charge bail unless its application is considered both necessary and proportionate in all the circumstances.
The government has been clear that it fully supports the use of pre-charge bail. This point is also reinforced by guidance released by the National Police Chiefs’ Council, which stresses the need to consider bail in high harm cases.
However, following discussions with the police and other stakeholders we are concerned that pre-charge bail is not being used in cases where it may be necessary to prevent an individual from failing to surrender to custody, to prevent the individual from committing an offence whilst on bail or to prevent interfering with witnesses or otherwise obstructing the course of justice.
The government therefore considers it necessary to review the presumption against pre-charge bail and the criteria for its application.
Through discussions with stakeholders 4 main approaches for achieving this have been identified:
a) a return to the use of bail for all cases following arrest
b) removing the general presumption against bail and introducing offence-based criteria for when bail should be used
c) removing the general presumption against bail and introducing specific risk-based criteria indicating when bail should be used
d) removing the general presumption against bail but maintaining the requirement for bail to be necessary and proportionate
We believe the bail rules should assist the police to make risk-based decisions, and to use their experience to consider the application of pre-charge bail on a case by case basis, rather than being required to apply bail for specific offences or in all cases. An offence specific approach would also ignore the vulnerability and needs of victims and witnesses for lower level offences. As such, the government believes a risk-based approach warrants further consideration.
The government proposes legislating: (i) to end the presumption against pre-charge bail, instead requiring pre-charge bail to be used where it is necessary and proportionate and (ii) to add a requirement that a constable must have regard to the following factors when considering whether application of pre-charge bail is necessary and proportionate:
a) the severity of the actual, potential or intended impact of the offence
b) the need to safeguard victims of crime and witnesses, taking into account their vulnerability
c) the need to prevent further offending
d) the need to manage risks of a suspect absconding
e) the need to manage risks to the public