Bail Flashcards
What is bail?
Bail is a process of attempting to ensure that a person appears at a specified time a specified place, such as a police station (‘police to police bail’) or court (‘police to court bail’).
There is now a presumption of release without bail in almost all cases, unless the need for bail meets strict criteria for necessity and proportionality.
In most cases, how long is bail limited to?
28 days, starting the day after the arrest.
Bail can be imposed when it is necessary and proportionate, and authorised by an Inspector who will have to justify their decision.
What legislation is crucial to the discussion of bail?
PACE- Part 4 covers Pre-charge Bail – The legislation amending the default position when released before charge to “released under investigation” and governing the various requirements around imposing pre-charge bail.
Bail Act 1976 - The principal legislation governing bail in the United Kingdom, defining the meaning of ‘bail in criminal proceedings’, enshrining a general right to bail and creating the offence of ‘Failing to Surrender on bail’.
Section 34 PACE - This is the section of the Police and Criminal Evidence Act 1984 that is most commonly used when further investigation of an offence is required that cannot reasonably be concluded while the person is in police detention.
Legislation - s37 PACE - This section deals with bail in order to allow for CPS consultation and also post-charge provisions of bail.
Section 38 PACE - This section also confirms a general provision of bail but presents a list of reasons in subsection 1 for why bail might be withheld. This is known as being remanded in custody.
What is the difference between Pre-Charge vs Post-Charge Bail?
Pre-charge: bail during the investigation. Will generally be to a police station, and will be imposed by the police (or other enforcement agencies).
Post-charge bail: bail after the bulk of the investigation. Will generally be to a court pending trial or sentencing and, while initially imposed by the police, will be either retained, modified or removed by the court after the suspect’s first appearance.
When a person is arrested and taken into custody, police generally have how long to deal with them?
When does the time start?
24 hours– as soon as detention stops being necessary that subject should be released. This is monitored periodically by the Inspector.
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This time period starts from the moment they arrive at a police station and is known as the relevant time or, more commonly, the PACE clock.
If it is clear that after a suspect has been interviewed and it is clear that much more investigation is required, for example, CCTV enquiries and witness statements, what should happen?
If it is likely the remainder of enquiries cannot be completed within the remaining time, then that person should be released as soon as practicable.
Can the PACE clock be extended? How?
The PACE clock can be extended on application to a Superintendent for indictable offences for a further 12 hours, giving a total of 36 hours, subject to this being justifiable. It is usually only granted for more serious cases.
There are also further provisions to extend detention by court application (up to a maximum of 96 hours without charge), but these are rarely used outside of the most serious investigations.
Where an investigation cannot be concluded within the (usual) 24-hour time period, the suspect must be released, unless other powers exist to detain them, and the investigation can continue in their absence.
What is this referred to as?
“Release under investigation”
Legally, no further action has been taken, however, there is a requirement for the police to keep the suspect informed of the status of the investigation to prevent abuse.
While under investigation, the police have no power beyond further offences (such as witness intimidation) to control the movements or actions of the suspect. Any further interviews will be held voluntarily.
A suspect can be re-arrested where fresh evidence emerges.
A person who fails to attend at the stated location/time/date, or who breaks their bail conditions, can be arrested without warrant under….
s46A of the PACE Act.
Bail can then be split into two categories:
Unconditional bail
Conditional bail
What is unconditional bail?
Simply gives somebody a date by which they are either to return to the police station or attend court. They are under no other obligation other than to turn up at the date and time given.
What is conditional bail?
This is more onerous and must be justified by the custody sergeant.
Means that the person has to abide by certain conditions. These conditions may require that the person lives at a certain address or does not contact certain people. The police may also impose a curfew or take away their passport and may require that they report to the police station at set times.
The legislation is still new, and so discussion as to when bail is imposed will vary from force to force. Below are some recent examples of when bail may (or may not) be necessary.
A domestic assault case whereby a wife had been assaulted by her husband. A further witness was not at the scene, and police had not managed to reach them within the initial 24 hours. As such, bail conditions were sought for the husband to live at a separate address.
Following an arrest for fighting in the street, the suspect was assessed by a mental health team in custody, deemed unfit to be interviewed, and sectioned to a secure mental health hospital. Bail conditions were sought to guarantee the suspect would return to the police station to be interviewed following their release.
What is the Applicable Bail Period, or ABP?
An inspector will authorise not just bail, but the length for which that bail is authorised – this is known as the Applicable Bail Period, or ABP.
Can bail be extended beyond 28 days?
If further time on bail is necessary, this can be authorised by a Superintendent, if the bail remains necessary and proportionate.
This must be authorised during the initial bail period – it cannot be retroactive – and can be up to 3 calendar months from the bail start date.
If further time beyond the initial extension is necessary, bail can be extended to 6 months by a magistrate’s court. Again, the application for extension must be made while the suspect is on bail.
Where a case is determined as being “exceptionally complex” by a Qualifying Prosecutor, they can decide it is a designated case. For designated cases, the bail period can be extended to 6 months without having to apply to court.
