Is there any point in pre-charge bail?

A lot of criticism has been levelled at the police in recent years – some justified, some not. Lawyers have been particularly unhappy about release under investigation (RUI), with suspects being left in limbo for months, if not years, while the police investigate the crime. Long periods of RUI are terrible for suspects, alleged victims and for lawyers (who are not legally aided for work during RUI). Senior police leaders were also concerned about RUI since they felt it gave officers an excuse to delay investigations.

The police held up pre-charge bail as a better alternative to RUI, but the argument was flawed. The answer to RUI was to speed up investigations not to put more suspects on pre-charge bail. But advocates for giving police greater discretion to use pre-charge bail were successful in getting the law changed in the PCSC Act.

Pre-charge bail is a peculiar creature. It is used when suspects are being released from custody – when the police don’t yet have enough evidence to charge someone but they want to “keep tabs on” them. They can subject the suspect to pre-charge bail with or without conditions (eg to report to a police station regularly or not to go to a certain area). However it is framed, pre-charge bail is an infringement on the liberty of someone who has not even been charged with a crime.

But the weirdest thing about pre-charge bail is that it is punitive, bureaucratic and stigmatising but also unenforceable since breach of pre-charge bail is not an offence. People can be arrested for breach of pre-charge bail conditions but can’t be charged for the breach. Theoretically, the arrest for breach of pre-charge bail could lead to a charge for the original offence, but that necessitates the police finding the so far missing evidence to charge.

We had concerns about the new legislation, and it smacks of lack of parliamentary scrutiny. But the new police guidance on how to use the law compounds the muddle. It encourages officers to use pre-charge bail without evidencing why, and does not mention at any point that breach of pre-charge bail is not an offence. It encourages officers to arrest for breach of pre-charge bail conditions without pointing out that arrest is pretty pointless unless there is new evidence to support charging the original offence.

Pre-charge bail has two overt justifications – to keep tabs on suspects and to protect alleged victims. When dealing with victims the guidance again ties itself in knots, partly because the new legislation is not based on evidence. The guidance says that victims should be consulted about pre-charge bail conditions (whether to impose and what particular conditions to use), even before officers have established that a crime was committed. The guidance says victims think they are safer if pre-charge bail conditions are used, but this is based on small scale qualitative research. Victims who think they will be safer are presumably responding to what they have been told??Meanwhile, there is no evidence that pre-charge bail does protect alleged victims nor what effect different conditions have. I’m also not convinced victims are told pre-charge bail conditions are unenforceable – if they were I doubt they would be persuaded of their efficacy.

The guidance does admit that there is no evidence pre-charge bail impacts offending, but also says that police should take positive action when conditions are breached to ensure?"that the suspect is aware that further offending behaviour will not go unaddressed and may act as a deterrent to suspects, who may otherwise believe there is no consequence to a breach of police bail conditions”. “Further offending behaviour” implies the suspect is guilty of the offence for which they were arrested and have committed an offence through breaching bail. But they haven’t. And the threat of “consequence to a breach of bail conditions” is empty since there is no real consequence. Nor should there be, given the suspect has not actually been charged with a crime, and may never be.

It is a tenet of English law that those accused of crime should be free until they admit guilt/are tried in court. This guidance supports police to restrict the liberty of people who haven’t been charged with a crime and to give alleged victims the illusion of being protected, without any evidence they can be. The problems of the guidance derive from the original legislation, which was muddled. But in trying to make the legislation make sense, the guidance may be letting down both suspects and alleged victims.