Release of Person Arrested

Question 1

Person Arrested Elsewhere than at a Police Station

Answer 1

Where a person is arrested at any place other than a police station, or taken into custody by a constable following an arrest made by a civilian, the constable is normally obliged to take that person to a designated police station (Police and Criminal Evidence Act 1984, s. 30(1), (1A), (1B) and (2)), or in certain circumstances to a non-designated police station ((s. 30(3) to (6)).
An arrested person may, instead of being taken to a police station, be released with bail (known as ‘street bail’) or without bail to attend at a police station at a later date. The provisions of the 1984 Act in relation to this are detailed below.

Question 2

Variation of Bail Conditions: Police

Answer 2

The ‘investigating officer’ means the constable or other person in charge of the investigation of the offence; ‘relevant condition’ means a condition that relates to the safeguarding of the alleged victim; ‘relevant offence’ means the offence for which the person making the request under subsection (1) was under arrest when granted bail under s. 30A(1); ‘relevant officer’ in relation to a designated police station, means a custody officer but, in relation to any other police station means a constable who is not involved in the investigation of the relevant offence, if readily available, and if not available the constable who granted bail (s. 30CA(5)).

A person (‘P’) is an alleged victim of an offence if an allegation has been made to a constable or other person involved in the investigation of the offence that P has suffered physical, mental or emotional harm, or economic loss, which was directly caused by the offence and P is an individual (s. 30CA(6)).

An alleged victim of an offence is vulnerable if they were aged under 18 at the time of the offence, or may have difficulty understanding a communication from an investigating officer or communicating effectively in response to it by reason of a physical disability or disorder, a mental disorder within the meaning of the Mental Health Act 1983, or significant impairment of intelligence and social functioning (s. 30CA(7)).

Question 3

Variation of Bail Conditions: Court

Answer 3

Where the court varies the conditions they must be seen as necessary for any of the purposes mentioned in s. 30A(3B)(a)–(d), and bail continues subject to the varied conditions (s. 30CB(3)(b) and (c)). It was held in R (On the Application of Ajaib) v Birmingham Magistrates’ Court [2009] EWHC 2127 (Admin) that in deciding to vary bail conditions, the court was entitled to rely on a police officer’s evidence whilst allowing him to withhold specific information. In this case the police asserted that they held material disclosure of which would prejudice their inquiries, suggesting that the suspect was liquidating his assets to travel abroad.

Question 4

Power of Arrest for Non-attendance and Breach of Bail Conditions

Answer 4

Section 30D(1) and (2) relate to a person’s failure to answer his/her bail at the specified time and place.

Section 30D(2A) and (2B) provide a power of arrest where a constable has reasonable grounds to suspect that a person has broken any of the conditions of bail.

Question 5

The Police and Criminal Evidence Act 1984 provides for the following pre-charge scenarios:

Answer 5

· the custody officer determines that there is sufficient evidence to charge that person with the offence for which they were arrested and may detain them at the police station for such period as is necessary to enable them to do so (s. 37(1));
· if (a) the custody officer determines that C does not have such evidence before C, and (b) the pre-conditions for bail are satisfied, the person arrested must be released on bail (subject to subsection (3) (s. 37(2));
· if (a) the custody officer (‘C’) determines that C does not have such evidence before C, and (b) the pre-conditions for bail are not satisfied, the person arrested must be released without bail (subject to subsection (3)) (s. 37(2A));
· the custody officer determines that there is insufficient evidence to charge that person with the offence for which they have been arrested, the person shall be released pending the obtaining of further evidence with bail where the pre-conditions for bail are satisfied or without bail (release under investigation) where the pre-conditions for bail are not met (s. 37(2));
· the custody officer has reasonable grounds for believing that the person’s detention without being charged is necessary to secure or preserve evidence, then the person may be kept in police detention (s. 37(3));
· subject to s. 41(7) (below), if there is sufficient evidence to charge the person the custody officer shall release the person without charge and on bail or keep the person in police detention, for the purpose of enabling the DPP to make a decision under s. 37B (s. 37(7)(a));
· there is sufficient evidence to charge and the custody officer releases the person without charge and if the pre-conditions for bail are satisfied, on bail (s. 37(7)(b));
· there is sufficient evidence to charge and the custody officer releases the person without charge and on bail if the preconditions are satisfied but not for the purpose mentioned in s. 37(7)(a) (s. 37(7)(c));
· there is sufficient evidence and the person is charged (s. 37(7)(d));
· a review officer concludes that the detention of a person without charge can no longer be justified and the custody officer releases the person without bail unless the pre-conditions for bail are satisfied (s. 40(8));
· a person, who at the expiry of 24 hours after the relevant time is in police detention and has not been charged, shall be released at that time without bail unless the pre-conditions for bail are satisfied, or on bail if those pre-conditions are satisfied (s. 41(7)). This subsection does not apply to a person whose detention for more than 24 hours has been authorised or otherwise permitted (s. 41(8)).

Question 6

Pre-charge Release of Person Arrested and Bail

Answer 6

The decision as to how a person is to be dealt with under subs. (7) above shall be that of the custody officer (s. 37(7A)).

In relation to s. 37(7)(a) and (c), s. 37B provides for occasions where it is considered necessary to refer the case to the DPP for a decision as to whether there is sufficient evidence to charge the person.

Section 47ZZA requires that a custody officer seek the views of alleged victims on conditions of pre-charge bail in certain circumstances. This relates to where a person has been arrested for an offence and the custody officer is proposing to release the person on bail (except where s. 37C(2)(b) (awaiting DPP charging decision) and s. 37CA(2)(b) (breach of bail) apply)). If it is reasonably practicable to do so the investigating officer must seek the views of the alleged victim if the offence on whether relevant conditions should be imposed on the person’s bail, and if so, what relevant conditions should be imposed. ‘Relevant condition’ means a condition that relates to the safeguarding of the alleged victim.

The release on bail of a person under this part of the Act shall be a release on bail granted in accordance with ss. 3, 3A, 5 and 5A of the Bail Act 1976 as they apply to bail granted by a constable (s. 47(1)).

Where a person has been granted bail to attend at a police station (s. 47(3)(b)), a custody officer may subsequently appoint a different time, or an additional time for attendance to answer bail and must give the person notice in writing of any changes (s. 47(4A) and (4B)). A custody officer may not appoint a time for a person’s attendance under subs. (4A) which is after the end of the applicable bail period in relation to the person (s. 47(4E)).

If bail conditions have been imposed by the custody officer these may be varied by a magistrates’ court on the application of the suspect (s. 47(1E)). The magistrates may confirm or remove the existing conditions or impose other conditions (Criminal Procedure Rules 2020, r. 14.6). Irrespective of the outcome it continues to be police bail.

A person released on bail under ss. 37(7)(b) and 37(7)(c) who breaches that bail and is arrested under s. 46A (see para. 1.10.3.3) shall be charged or released without bail unless the pre-conditions for bail are satisfied, or on bail if those pre-conditions are satisfied (ss. 37C and 37CA).

Nothing prevents the re-arrest without warrant of a person released on bail subject to a duty to attend at a police station if new evidence justifying a further arrest has come to light since his/her release (s. 47(2)).

Where a person is released under s. 41(7) (expiry of 24 hours’ detention), s. 42(10) (expiry of authority of continued detention) or s. 43(18) (expiry of warrant of further detention), they shall not be re-arrested without a warrant for the offence for which they were previously arrested unless, since the person’s release, new evidence has come to light or an examination or analysis of existing evidence has been made which could not reasonably have been made before their release.

Question 7

The meaning of ‘pre-conditions for bail’ (introduced by the Policing and Crime Act 2017) is contained in the Police and Criminal Evidence Act 1984, s. 50A which states:

Answer 7

(1) Interpretation of references to pre-conditions for bail
For the purposes of this Part the following are the pre-conditions for bail in relation to the release of a person by a custody officer—
(a) that the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and
(b) that the custody officer has considered any representation made by the person or the person’s legal representative.
(2) In determining whether releasing the person on bail is necessary and proportionate in all the circumstances, the custody officer must have regard in particular to—
(a) the need to secure that the person surrenders to custody,
(b) the need to prevent offending by the person,
(c) the need to safeguard victims of crime and witnesses, taking into account any vulnerabilities of any alleged victim of, or alleged witness to, the offence for which the person was arrested where these vulnerabilities have been identified by the custody officer,
(d) the need to safeguard the person, taking into account any vulnerabilities of the person where these vulnerabilities have been identified by the custody officer, and
(e) the need to manage risks to the public.

Question 8

Pre-conditions for Bail

Answer 8

A new section 50B has been inserted by the Police Crime, Sentencing and Courts Act 2022. This provides that the College of Policing may, with the approval of the Secretary of State, issue guidance on bail that is granted to a person under Part 3 of this Part (pre-charge bail).

Section 50B(2) outlines what the guidance on pre-charge bail may cover and includes:

· the exercise of powers to release a person on pre-charge bail;
· the exercise of powers to impose or vary conditions of pre-charge bail;
· the exercise of powers to arrest a person, for failing to answer pre-charge bail, or for breaching any conditions of pre-charge bail;
· the exercise of powers to extend the period of pre-charge bail;
· the duty to seek the views of alleged victims about conditions of pre-charge bail.

The guidance does not apply to the SFO, FCA, HMRC or NCA (s. 50B(8)).

Question 9

Applicable Bail Period: Initial Limit

Answer 9

When the custody officer is releasing a person on bail to attend at a police station under s. 47(3)(c), he/she must appoint a time on the day on which the ‘applicable bail period’ in relation to the person ends (s. 47ZA(1) and (2)).

The ‘applicable bail period’, in relation to a person, means in a FCA case, HMRC case, NCA case or SFO case, the period of 6 months beginning with the person’s bail start date (s. 47ZB(1)(a)) and in any other case the period of 3 months beginning with the person’s bail start date (s. 47ZB(1)(b)). A person’s bail start date is the day after the day on which the person was arrested for the relevant offence (s. 47ZB).

The applicable bail period may be changed by the custody officer where the person is on bail in relation to one or more offences other than the relevant offence and it is appropriate to align the person’s attendance in relation to the relevant offence with the person’s attendance in relation to one or more other offences (s. 47ZA(3)). This subsection applies where the custody officer believes that a decision as to whether to charge the person with the relevant offence would be made before the end of the applicable bail period in relation to the person (s. 47ZA(4)). Where subs. (3) or (4) applies, the power may be exercised so as to appoint a time on a day falling before the end of the applicable bail period in relation to the person (s. 47ZA(5)).

Question 10

Applicable Bail Period: Extension of Initial Limit in Standard Cases (s. 47ZD)

Answer 10

This section allows for a relevant officer (an officer of the rank of inspector or above) (s. 47ZB(4)(d)) to extend bail from 28 days to six months where the conditions A to D set out in s. 47ZC are met. The relevant officer must arrange for the suspect or their legal representative to be invited to make representations, and must consider any that are made before making a decision. The suspect (or their representative) must be informed of the outcome.

Question 11

The four conditions outlined in s. 47ZC are:

Answer 11

Condition A—the decision-maker has reasonable grounds for suspecting the person in question to be guilty of the relevant offence.

Condition B—the decision-maker has reasonable grounds for believing:
(a) in a case where the person in question is or is to be released on bail under s. 37(7)(b) or 37CA(2)(b), that further time is needed for making a decision as to whether to charge the person with the relevant offence, or
(b) otherwise, that further investigation is needed of any matter in connection with the relevant offence.

Condition C—the decision-maker has reasonable grounds for believing:
(a) in a case where the person in question is or is to be released on bail under s. 37(7)(b) or 37CA(2)(b), that the decision as to whether to charge the person with the relevant offence is being made diligently and expeditiously, or
(b) otherwise, that the investigation is being conducted diligently and expeditiously.

Condition D—the decision-maker has reasonable grounds for believing that the release on bail of the person in question is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which are, or are to be, imposed).

Question 12

Applicable Bail Period: Further Extension of Limit in Standard Cases (s. 47ZDA)

Answer 12

If a relevant officer has authorised an extension of the applicable bail period in relation to the person under section 47ZD, that period has not ended, and a senior officer is satisfied that conditions A to D are met in relation to the person, the senior officer may authorise the applicable bail period in relation to the person to be extended so that it ends at the end of the period of 9 months beginning with the person’s bail start date.

Before deciding on an authorisation the senior officer must arrange for the person or the person’s legal representative to be informed that a determination is to be made and must consider any representations made by the person or the person’s legal representative.
The senior officer must arrange for the person or the person’s legal representative to be informed whether an authorisation has been given in relation to the person. ‘Senior officer’ means a police officer of the rank of superintendent or above.

Question 13

Applicable Bail Period: Extension of Limit in non-Standard Cases (s. 47ZDB)

Answer 13

If the applicable bail period in relation to a person is the period mentioned in section 47ZB(1)(a), that period has not ended, and an appropriate decision-maker is satisfied that conditions A to D are met in relation to the person, they may authorise the applicable bail period in relation to the person to be extended so that it ends at the end of the period of 12 months beginning with the person’s bail start date. The person or the person’s legal representative must be informed that a determination is to be made, any representation must be considered, and they must be informed whether an authorisation has been given in relation to the person.

Question 14

An ‘appropriate decision-maker’ means—

Answer 14

· in an FCA case, a member of staff of the Financial Conduct Authority designated by the Executive of that Authority;
· in an HMRC case, an officer of Revenue and Customs of a grade that is equivalent to the rank of superintendent or above;
· in an NCA case, a National Crime Agency officer of a grade that is equivalent to the rank of superintendent or above;
in an SFO case, a member of the Serious Fraud Office who is of the Senior Civil Service.

Question 15

Applicable bail period: extension of limit in designated cases (s. 47ZE)

Answer 15

This section provides that if a senior officer has authorised an extension of the applicable bail period in relation to the person under section 47ZDA the Director of Public Prosecutions may designate the person’s case as being an exceptionally complex case (a ‘designated case’). If a qualifying police officer is satisfied that conditions A to D are met in relation to the person in a designated case, the officer may authorise the applicable bail period in relation to the person to be extended so that it ends at the end of the period of 12 months beginning with the person’s bail start date.

The qualifying police officer must consult the Director of Prosecutions and arrange for the person or the person’s legal representative to be informed that a determination is to be made, any representation must be considered, and they must be informed whether an authorisation has been given in relation to the person.

Any authorisation for extending the bail period must be given before the applicable bail period in relation to the person has ended.

Question 16

Applicable bail period: first extension of limit by court (s. 47ZF)

Answer 16

If a senior officer has authorised an extension of the applicable bail period in relation to the person under section 47ZDA, an appropriate decision-maker has authorised an extension of the applicable bail period in relation to the person under section 47ZDB, or a qualifying police officer has authorised an extension of the applicable bail period in relation to the person under section 47ZE, a qualifying applicant (a constable, a Crown Prosecutor, or a designated member of the FCA, SFO, HMRC or NCA) may apply to a magistrates’ court for it to authorise an extension of the applicable bail period in relation to the person. This must be before the applicable bail period in relation to the person ends under this section.

Where a court is satisfied that conditions B to D as set out in s. 47ZC are met it may authorise an extension of bail. Dependent on the nature of the application the court may authorise an extension of 12, 18 or 24 months beginning with the persons bail start date.

Section 47ZG provides that further extensions of the bail period for up to 6 months may be authorised by the court where conditions B to D as set out in s. 47ZC are satisfied.

Question 17

Withholding Sensitive Information

Answer 17

Section 47ZH provides that the police or prosecutors may apply to the court to withhold certain information relevant to the application to extend bail from the person on bail and their legal representatives. The court may only allow information to be withheld for the four grounds set out in subs. (4)—essentially: that there are reasonable grounds to believe that disclosing that information would lead to evidence being interfered with; a person coming to harm; another suspect escaping arrest for an indictable offence; the recovery of property obtained as a result of an indictable offence being hindered.

Question 18

Applicable Bail Period: Cases Referred to the DPP

Answer 18

Bail time limits do not apply in cases where an individual is bailed under s. 37(7)(a) or 37C(2)(b) while waiting for a charging decision to be made by the DPP. However, where a charging decision has been requested from the DPP, but the DPP requests further information from the police before reaching that decision, bail time limits will re-apply during the period that the police are gathering that information and, accordingly, the police must set a new bail return date that is not after the end of the person’s applicable bail period. If, at the point that the DPP makes the request for further information, the person’s applicable bail period would end within seven days of the DPP’s request, the person’s applicable bail period is extended to seven days from that request in order to give the police time to gather the information, seek a bail extension or release the suspect from bail. Where the information requested by the DPP is provided, the bail time limit is again suspended (s. 47ZL).

Question 19

Applicable Bail Period: Special Cases of Release on Bail Under Section 30A and Periods in Hospital (s. 47ZM)

Answer 19

Where a person is granted bail under s. 30A (see para. 2.2.2.1) or s. 47ZB (see para. 2.2.3.2) their bail end date means the last day of the period of 28 days beginning with the day after the day when they were initially bailed. However, if the running of the applicable bail period is to be treated as having been suspended for any day on which the person is in hospital as an in-patient.

Question 20

Power of Arrest for Failure to Answer to Police Bail

Answer 20

In subs. (1ZB)(a) the reference to s. 47(3)(b) relates to ‘live link bail’.

The offence for which a person is arrested under subs. (1) is the offence for which he or she was granted bail (s. 34(7)).

Section 46A(1) provides a power of arrest only where a person fails to attend at that police station at the time appointed. This should be contrasted with s. 46A(1A) where a person released on bail under s. 47 may be arrested if there are reasonable grounds for suspecting that the person has broken any of the conditions of bail.

Question 21

OFFENCE
Breach of Pre-charge Bail Conditions Relating to Travel—Policing and Crime Act 2017, s. 68

Answer 21

12 months’ imprisonment and/or a fine on indictment

Six months’ imprisonment and/or a fine summarily

The Policing and Crime Act 2017, s. 68 states:

(3) The person commits an offence if—
(a) the person’s release on bail is subject to the travel restriction condition mentioned in subsection (2)(a) and he or she fails to comply with the condition, or
(b) the person’s release on bail is subject to a travel restriction condition mentioned in subsection (2)(b) to (f) and he or she fails, without reasonable excuse, to comply with the condition.

Question 22

KEYNOTE - Breach of Pre-charge Bail Conditions Relating to Travel

Answer 22

This offence relates to a person who breaches certain travel-related conditions of pre-charge bail for those arrested on suspicion of committing a terrorist offence.

The offence would apply where a person has been arrested under s. 24 of PACE or art. 26 of the Police and Criminal Evidence (Northern Ireland) Order 1989 on suspicion of committing a terrorist offence, as listed in s. 41 of the Counter-Terrorism Act 2008, has been released on pre-charge bail subject to a travel restriction condition and subsequently breaches, without reasonable excuse, any of those conditions. The offences listed in s. 41 of the Counter-Terrorism Act 2008 cover a range of offences including membership of a proscribed organisation, fundraising in support of terrorism, and encouraging terrorist acts.

This section provides another tool for the police to tackle terrorism by deterring those arrested on suspicion of a terrorist offence from breaching a travel restriction condition imposed under the terms of their pre-charge bail, and by adding to the range of offences which might be prosecuted in cases where such a person has returned to the United Kingdom.

The offence can be tried on indictment in the Crown Court, which means that the Criminal Attempts Act 1981 applies so as to make it an offence to attempt to breach a travel restriction condition.

Question 23

A ‘travel document’

Answer 23

means anything that is or appears to be a passport, or a ticket or other document that permits a person to make a journey by any means from a place in the United Kingdom to a place outside the United Kingdom (s. 69(2)). ‘Passport’ means a UK passport, a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom (or by or on behalf of an international organisation) or a document that can be used (in some or all circumstances) instead of a passport (s. 69(3)).

Question 24

Notification of Decision not to Prosecute

Answer 24

The custody officer is under a duty to notify a person released under s. 34, 37 or 37CA if a decision is made not to prosecute that person, either due to there being insufficient evidence, or where there is sufficient evidence but a decision is made that the person should not be charged or cautioned (s. 34(5B)). A notice in writing that the person is not to be prosecuted must be given to the person (s. 34(5C)). However, this does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given (s. 34(5D)). These provisions also apply to a person released after the expiry of 24 hours’ detention under s. 41(7) (s. 41(10) to (12)).

Question 25

Police Bail After Charge

Answer 25

Where a person is charged at the police station (otherwise than a warrant backed for bail) the custody officer must make a decision to keep the person in custody until they can be brought before a magistrates’ court, or to release the person either on bail or without bail, unless one or more conditions in the Police and Criminal Evidence Act 1984, s. 38, are satisfied (s. 38(1)).

Where a custody officer grants bail to a person to appear before a magistrates’ court, he must appoint for the appearance a date which is not later than the first sitting of the court after the person is charged with the offence. If informed by the court that the appearance cannot be accommodated until a later date, that later date. For a person subject to a duty to appear at a police station, the custody officer may give notice in writing to that person that his/her attendance at the police station is not required (s. 47(3A)).

Where a custody officer has granted bail to a person subject to a duty to appear at a police station, the custody officer may give notice in writing to that person that his/her attendance at the police station is not required (s. 47(4)).

The reference to s. 47ZA in s. 47(3)(c) relates to ‘applicable bail periods’ (see para. 1.10.3.2).

In Williamson v Chief Constable of West Midlands [2003] EWCA Civ 337, it was clarified that the Bail Act 1976 does not apply to ‘breach of the peace’ as it is not a criminal offence.

Question 26

Where the custody officer decides to bail a person who has been charged, s. 47(3) of the 1984 Act provides they may do so:

Answer 26

(a) to appear before a magistrates’ court at such time and such place as the custody officer may appoint;
(b) to attend at such police station as the custody officer may appoint at such time as he may appoint for the purposes of—
(i) proceedings in relation to a live link direction under section 57C of the Crime and Disorder Act 1998 (use of live link direction at preliminary hearings where accused is at police station); and
(ii) any preliminary hearing in relation to which such a direction is given; or
(c) to attend at such police station as the custody officer may appoint at such time as he may appoint for purposes other than those mentioned in paragraph (b). (subject to section 47ZA).

Question 27

Bail Restrictions

Answer 27

The Criminal Justice and Public Order Act 1994 provides for those occasions when bail may only be granted in exceptional circumstances where a person is charged with certain specified offences.

Section 25 provides that bail may not be granted where a person is charged with murder, attempted murder, manslaughter, rape or attempted rape if he/she has been previously convicted of any of these offences unless there are exceptional circumstances. A person charged with murder may not be granted bail except by order of a Crown Court judge (s. 115 of the Coroners and Justice Act 2009). This does not apply to attempted murder or conspiracy to murder.

Even where a person’s custody time limit had expired, s. 25 could still be applied and the evidential burden was on the defence to demonstrate that exceptional circumstances existed. Also, in the case of Hurnam v State of Mauritius [2005] UKPC 49, the Privy Council stated that the seriousness of the offence is not a conclusive reason for refusing bail and the court must consider whether or not the accused is likely to abscond if released on bail.

In all other cases the custody officer must consider the issue of bail and s. 38(1) of the 1984 Act sets out the occasions where bail can be refused.

Question 28

The Police and Criminal Evidence Act 1984, s. 38(1) provides that where an arrested person is charged with an offence, the custody officer, subject to s. 25 of the Criminal Justice and Public Order Act 1994, need not grant bail if the person arrested is not an arrested juvenile and one or more of the following grounds apply:

Answer 28

· the person’s name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished is his/her real name or address;
· the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail;
· in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him/her from committing an offence;
· in a case of a person aged 18 or over, where a sample may be taken from the person under s. 63B (where there is a provision for drug testing in force for that police area and station), the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable the sample to be taken;
· in the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him/her from causing physical injury to any other person or from causing loss of or damage to property;
· the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him/her from interfering with the administration of justice or with the investigation of offences or of a particular offence;
· the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his/her own protection; or
the person is charged with murder.

Question 29

If the person arrested is an arrested juvenile and one or more of the following grounds apply:

Answer 29

· any of the requirements of paras (a) to (h) above, but in the case of para. (d) only if the arrested juvenile has attained the minimum age;
the custody officer has reasonable grounds for believing that the arrested juvenile ought to be detained in his/her own interests.

Question 30

Grounds for Refusing Bail

Answer 30

Juveniles being detained ‘in their own interests’ means for their own welfare. The expression ‘welfare’ has a wider meaning than just ‘protection’ and might apply to juveniles who, if released, might be homeless or become involved in prostitution or vagrancy (Bail Act 1976, sch. 1, part I, para. (3)). Section 38 of PACE and s. 21 of the Children Act 1989 make clear that there are very limited circumstances to justify the detention of children at police stations. However, in Archer v Commissioner of Police of the Metropolis [2021] EWCA Civ 1662, it was held to be lawful where a juvenile was detained for a short period overnight until he could be brought to court. There was no secure accommodation in the local area for juveniles and therefore no reasonable alternative and there was also a real risk that the juvenile might be attacked if released.

In taking the decisions required by s. 38(1), except where a defendant’s name and address cannot be ascertained, detention is necessary for the person’s own protection, or a juvenile is detained in his/her own interests, the custody officer is required to have regard to the same considerations as those which a court is required to have regard to in taking corresponding decisions under the Bail Act 1976, sch. 1, part I, para. 2(1) (s. 38(2A)).

Schedule 1, part I, para. 2(1) provides that the defendant need not be granted bail if the court (custody officer) is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would:

· fail to surrender to custody; or
· commit an offence while on bail; or
· interfere with witnesses or otherwise obstruct the course of justice, whether in relation to him/herself or any other person.

In R (On the Application of Ajaib) v Birmingham Magistrates’ Court [2009] EWHC 2127 (Admin), it was held that a police officer’s opinion that the accused is a ‘flight risk’ was sufficient even though the source of information giving rise to the officer’s opinion was not disclosed.

Where bail is refused, the custody officer must inform the detained person of the reasons why and make an entry as to these reasons in the custody record (s. 38(3) and (4)). This must be done as soon as the decision to refuse bail is made unless the conditions set out in PACE, Code C, para. 1.8. apply, i.e. the person is incapable of understanding, is violent or is in urgent need of medical attention. In such cases, the person must be informed as soon as practicable.

The decision regarding bail is part of the process of investigation of crime with a view to prosecution and so the police enjoy immunity in respect of decisions to refuse bail (Gizzonio v Chief Constable of Derbyshire (1998) The Times, 29 April).

In relation to the detention of juveniles where bail has been refused, see para. 1.7.17 Charging Detained Persons and para. 1.7.17.1 Juveniles and Appropriate Adults.

Question 31

Schedule 1, part I, para. 9 provides that in taking the decisions required by para. 2(1), the court (custody officer) will have regard to such of the following considerations as appear to be relevant:

Answer 31

(a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it);
(b) the character, antecedents, associations and community ties of the defendant;
(c) the defendant’s record as respects the fulfilment of his/her obligations under previous grants of bail in criminal proceedings;
(d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his/her having committed the offence or having defaulted;
(e) if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the risk that the defendant may do so by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant, as well as to any others which appear to be relevant. This includes domestic violence where a person is associated with the accused within the meaning of the Family Law Act 1996, s. 62.

Question 32

Bail Consideration by the Custody Officer

Answer 32

The granting of bail in criminal proceedings is provided by s. 3 of the Bail Act 1976 and this section examines the general provisions in relation to bail granted by a custody officer, the conditions that may be attached and applications to vary or remove those conditions.

Question 33

General Provisions

Answer 33

Subsection 3(7) relates to a parent/guardian standing surety for a person under the age of 17 (see para. 1.10.7.4).

Guidance to courts, applicable also to a custody officer, when approaching the decision to grant bail was given in R v Mansfield Justices, ex parte Sharkey [1985] QB 613, where it was held that any relevant risk, for example, absconding, must be a ‘real’ risk, not just a fanciful one.

Where a custody officer grants bail there is a requirement for a record to be made of the decision in the prescribed manner and containing the prescribed particulars. If requested, a copy of the record of the decision must, as soon as practicable, be given to the person in relation to whom the decision was taken (s. 5(1)).

Question 34

The power of a custody officer to impose bail conditions is provided by s. 3A of the 1976 Act, which states:

Answer 34

(5) Where a constable grants bail to a person no conditions shall be imposed under subsections (4), (5), (6) or (7) of section 3 of this Act unless it appears to the constable that it is necessary to do so—
(a) for the purpose of preventing that person from failing to surrender to custody, or
(b) for the purpose of preventing that person from committing an offence while on bail, or
(c) for the purpose of preventing that person from interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person, or
(d) for that person’s own protection, or if he is a child or young person, for his own welfare or in his own interests.

Question 35

Where a custody officer decides to grant bail and considers one or more of the requirements in s. 3A(5)(a)–(d) apply, one or more of the following conditions can be imposed:

Answer 35

· the accused is to live and sleep at a specified address;
· the accused is to notify any changes of address;
· the accused is to report periodically (daily, weekly or at other intervals) to his/her local police station;
· the accused is restricted from entering a certain area or building or to go within a specified distance of a specified address;
· the accused is not to contact (whether directly or indirectly) the victim of the alleged offence and/or any other probable prosecution witness;
· the accused is to surrender his/her passport;
· the accused’s movements are restricted by an imposed curfew between set times (i.e. when it is thought the accused might commit offences or come into contact with witnesses);
· the accused is required to provide a surety or security.

Question 36

Custody Officer: Conditions of Bail

Answer 36

In McDonald v Dickson [2003] SLT 476, it was held that a condition for an accused to remain in his dwelling at all times except between 10 am and 12 noon did not amount to detention or deprivation of his liberty and did not constitute an infringement of his right to liberty under the European Convention on Human Rights, Article 5.

A bail condition prohibiting a person from residing at their home address was held to be disproportionate even where the police were investigating a serious offence of racially aggravated harassment against neighbours (R (On the Application of Carson) v Ealing Magistrates’ Court [2012] EWHC 1456 (Admin)).

In relation to non-imprisonable offences it has been held that a hunt protester who was arrested for an offence under s. 5 of the Public Order Act 1986 was rightly required as a condition of his bail not to attend another hunt meeting before his next court appearance (R v Bournemouth Magistrates’ Court, ex parte Cross [1989] Crim LR 207).

Question 37

Applications to Vary or Remove Bail Conditions

Answer 37

The power to vary or remove conditions is provided by s. 3A of the Bail Act 1976. Section 3A(4) substitutes s. 3(8) and states:

Where a custody officer has granted bail in criminal proceedings he or another custody officer serving at the same police station may, at the request of the person to whom it was granted, vary the conditions of bail and in doing so he may impose conditions or more onerous conditions.

KEYNOTE

Section 3A(5) (see para. 1.2.7.2) also applies on any request to a custody officer to vary or remove conditions of bail.

There is a requirement that a custody officer either imposing or varying the conditions of bail must include a note of the reasons in the custody record and give a copy of that note to the person in relation to whom the decision was taken (s. 5A(3)).

An accused may also apply to the magistrates’ court under s. 43B(1) of the Magistrates’ Courts Act 1980, to vary conditions of police bail. The prosecution may apply to the magistrates’ court to reconsider bail and vary the conditions of bail, impose conditions in respect of bail that has been granted unconditionally, or withhold bail (s. 5B(1)). This only applies to bail granted by the magistrates’ court or a constable and only in relation to offences triable on indictment or either way (s. 5B(2)). The application can only be on the basis of information that was not available to the court or constable when the original decision was taken (s. 5B(3)).

Question 38

The Bail Act 1976, s. 8 states:

Answer 38

(1) This section applies where a person is granted bail in criminal proceedings on condition that he provides one or more surety or sureties for the purpose of securing that he surrenders to custody.
(2) In considering the suitability for that purpose of a proposed surety, regard may be had (amongst other things) to—
(a) the surety’s financial resources;
(b) his character and any previous convictions of his; and
(C)his proximity (whether in point of kinship, place of residence or otherwise) to the person for whom he is to be surety.

Question 39

Police Bail: Surety

Answer 39

The question as to whether or not sureties are necessary is at the discretion of the custody officer (or court). A person cannot stand as his/her own surety (s. 3(2)).

There is no power to grant conditional bail with a surety to ensure no further offending; a surety can be sought only for the purpose of securing surrender to custody and not for any other purpose (R (On the Application of Shea) v Winchester Crown Court [2013] EWHC 1050 (Admin)).

The decision as to the suitability of individual sureties is a matter for the custody officer. Where no surety, or suitable surety, is available, the custody officer can fix the amount of cash or security in which the surety is to be bound for the purpose of enabling the recognizance of the surety to be entered into subsequently (s. 8(3)).

Where a court grants bail but is unable to release the person where no surety or no suitable surety is available, the court may fix the amount in which the surety is to be bound, and the recognizance of the surety may later be entered into before a police officer who is either of the rank of inspector or above or who is in charge of a police station, or other person as specified in s. 8(4) in conjunction with the Criminal Procedure Rules 2020, r. 14.14.
The normal consequence for a surety, where an accused fails to answer bail, is that he/she is required to forfeit the entire cash or security in which he/she stood surety. The power to forfeit recognizances is a matter for a court (Magistrates’ Courts Act 1980, s. 120).

It is not necessary to prove that the surety had any involvement in the accused’s non-appearance (R v Warwick Crown Court, ex parte Smalley [1987] 1 WLR 237). However, in R v York Crown Court, ex parte Coleman (1988) 86 Cr App R 151, it was held that where a surety had taken all reasonable steps to ensure the accused’s appearance the recognizance ought not to be forfeited.

The Bail Act 1976 provides that a surety may notify a constable in writing that the accused is unlikely to surrender to custody and for that reason he/she wishes to be relieved of his/her obligations as surety. This written notification provides a constable with the power to arrest the accused without warrant (s. 7(3)).

Where a parent or guardian of a person under the age of 17 consents to be surety, they may be required to secure that the person complies with any requirement imposed by virtue of s. 3(6) (see para. 1.10.7.1). No requirement shall be imposed on the parent or guardian where it appears that the person will attain the age of 17 before the time to be appointed for their surrender to custody (s. 3(7)).

Question 40

Security

Answer 40

A person granted bail may be required to give security for his/her surrender to custody (Bail Act 1976, s. 3(5)). The security can be money or some other valuable item which will be liable to forfeiture in the event of non-attendance in answer to bail.

A security may be required as a condition of bail but only if it is considered necessary to prevent the person absconding.

A third party may make an asset available to an accused to enable him/her to provide it as security for his/her release on bail (R (On the Application of Stevens) v Truro Magistrates’ Court [2001] EWHC Admin 558).

Question 41

OFFENCE

Acknowledging Bail in the Name of Another—Forgery Act 1861, s. 34

Answer 41

Triable on indictment
Seven years’ imprisonment

The Forgery Act 1861, s. 34 states:

Whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall in the name of any other person acknowledge any recognizance or bail, . . . or judgment or any deed or other instrument, before any court, judge, or other person lawfully authorised in that behalf, shall be guilty of felony . . .

Question 42

Acknowledging Bail in the Name of Another

Answer 42

This offence occurs where a person impersonates another person for the purpose of acting as a surety.

Provided the bail or recognizance is valid, this offence would appear to apply equally to bail granted by a court or the police.

Question 43

The use of a live link at preliminary hearings where the accused is at a police station is provided by the Crime and Disorder Act 1998. Section 57C of the Act states:

Answer 43

(1) This section applies in relation to a preliminary hearing in a magistrates’ court.
(2) Where subsection (3) or (4) applies to the accused, the court may give a live link direction in relation to his attendance at the preliminary hearing.
(3) This subsection applies to the accused if—
(a) he is in police detention at a police station in connection with the offence; and
(b) it appears to the court that he is likely to remain at that station in police detention until the beginning of the preliminary hearing.
(4) This subsection applies to the accused if he is at a police station in answer to live link bail in connection with the offence.
(5) A live link direction under this section is a direction requiring the accused to attend the preliminary hearing through a live link from the police station.
(6) But a direction given in relation to an accused to whom subsection (3) applies has no effect if he does not remain in police detention at the police station until the beginning of the preliminary hearing.
(6A) A live link direction under this section may not be given unless the court is satisfied that it is not contrary to the interests of justice to give the direction.

Question 44

Live Link Bail

Answer 44

A magistrates’ court may rescind a live link direction under this section at any time during a hearing to which it relates (s. 57C(8)).

Where a live link direction is given to an accused who is answering to live link bail he/she is to be treated as having surrendered to the custody of the court (as from the time when the direction is given) (s. 57C(10)).

The accused is to be treated as present in court when he/she attends via a live link and he/she must be able to see and hear, and to be seen and heard by, the court during the hearing (s. 57A(2)).

In this section, ‘live link bail’ means bail granted under part 4 of the Police and Criminal Evidence Act 1984 subject to the duty mentioned in s. 47(3)(b) of that Act (s. 57C(11)).

A person who fails to answer to live link bail or leaves the police station at any time before the beginning of proceedings in relation to a live link direction may be arrested (for s. 46A of the Police and Criminal Evidence Act 1984, see para. 1.10.3.3).

Question 45

The Police and Criminal Evidence Act 1984, s. 54B states:

Answer 45

(1) A constable may search at any time—
(a) any person who is at a police station to answer to live link bail; and
(b) any article in the possession of such a person.
(2) If the constable reasonably believes a thing in the possession of the person ought to be seized on any of the grounds mentioned in subsection (3), the constable may seize and retain it or cause it to be seized and retained.
(3) The grounds are that the thing—
(a) may jeopardise the maintenance of order in the police station;
(b) may put the safety of any person in the police station at risk; or
(C)may be evidence of, or in relation to, an offence.
(4) The constable may record or cause to be recorded all or any of the things seized and retained pursuant to subsection (2).
(5) An intimate search may not be carried out under this section.
(6) The constable carrying out a search under subsection (1) must be of the same sex as the person being searched.

Question 46

Searches of Persons Answering to Live Link Bail

Answer 46

A constable may retain a thing seized under s. 54B in order to establish its lawful owner where there are reasonable grounds for believing that it has been obtained in consequence of the commission of an offence (s. 54C(2)).

If a thing seized under s. 54B may be evidence of, or in relation to, an offence, a constable may retain it for use as evidence at a trial for an offence, or for forensic examination or for investigation in connection with an offence (s. 54C(3)).

Nothing may be retained for either of the purposes mentioned in subs. (3) if a photograph or copy would be sufficient for that purpose (s. 54C(4)).

Designated detention officers, as well as constables, can use the powers in ss. 54B and 54C to search and seize. Anything seized by a designated detention officer must be delivered to a constable as soon as practicable and in any case before the person from whom the thing was seized leaves the police station (Police Reform Act 2002, sch. 4, part 3, para. 27A).

Section 46A(1ZB) (see para. 1.10.3.3) provides a constable with a power of arrest for defendants who attend the police station to answer live link bail but refuse to be searched under s. 54B.

Question 47

The Bail Act 1976, s. 7 states:

Answer 47

(1) If a person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court fails to surrender to custody at the time appointed for him to do so the court may issue a warrant for his arrest.
(1A) Subsection (1B) applies if—
(a) a person has been released on bail in connection with extradition proceedings;
(b) the person is under a duty to surrender into the custody of a constable; and
(C) the person fails to surrender to custody at the time appointed for him to do so.
(1B) A magistrates’ court may issue a warrant for the person’s arrest.
(2) If a person who has been released on bail in criminal proceedings absents himself from the court at any time after he has surrendered into the custody of the court and before the court is ready to begin or to resume the hearing of the proceedings, the court may issue a warrant for his arrest but no warrant shall be issued under this subsection where that person is absent in accordance with leave given to him by or on behalf of the court.
(3) A person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court may be arrested without warrant by a constable—
(a) if the constable has reasonable grounds for believing that person is not likely to surrender to custody;
(b) if the constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions; or
(C)in a case where that person was released on bail with one or more surety or sureties, if a surety notifies a constable in writing that that person is unlikely to surrender to custody and that for that reason the surety wishes to be relieved of his obligations as a surety.

Question 48

Liability to Arrest for Absconding or Breaking Bail Conditions

Answer 48

Breach of conditions of bail is not a Bail Act offence, nor is it a contempt of court unless there is some additional feature (R v Ashley [2003] EWCA Crim 2571).

Where a person is arrested under s. 7 he/she shall be brought before a magistrate as soon as practicable and in any event within 24 hours (s. 7(4)(a)). However, in the case of a person charged with murder, or with murder and one or more other offences, he/she must be brought before a judge of the Crown Court (s. 7(8)).

This section requires that a detainee not merely be brought to the court precincts or cells but actually be dealt with by a justice within 24 hours of being arrested (R (On the Application of Culley) v Dorchester Crown Court [2007] EWHC 109 (Admin)).

In R v Evans [2011] EWCA Crim 2842, the Court of Appeal stated:

The general practice of accepting surrender by way of entry into the dock accords not only with common experience and general practice but also with principle . . . Crown Court surrender may also be accomplished by the commencement of any hearing before the judge where the defendant is formally identified and whether he enters the dock or not.

The word ‘court’ includes a judge of the court or a justice of the peace. Also a bail notice stating a particular time of attendance is a notice that may happen at any time from 9.30 am onwards. Mere arrival at the Crown Court building does not constitute surrender, neither does reporting to an advocate. Surrender has to be accomplished personally by the defendant.

Section 7 does not create an offence, it merely confers a power of arrest (R v Gangar [2008] EWCA Crim 2987).

Question 49

The Bail Act 1976 s. 6 creates two offences in relation to absconding and states:

Answer 49

(1) If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody he shall be guilty of an offence.
(2) If a person who—
(a) has been released on bail in criminal proceedings, and
(b) having reasonable cause therefor, has failed to surrender to custody, fails to surrender to custody at the appointed place as soon after the appointed time as is reasonably practicable he shall be guilty of an offence.

Question 50

Offence of Absconding by Person Released on Bail

Answer 50

Section 6 applies where:

· the police grant bail to a suspect to appear at the police station;
· the police grant bail to a defendant to appear at court on the first appearance;
· the court grants bail to the defendant to return to court at a later date.

The burden of proof in relation to showing ‘reasonable cause’ (s. 6(1)) is a matter for the accused (s. 6(3)).

A person who has ‘reasonable cause’ still commits the offence if he/she fails to surrender ‘as soon after the appointed time as is reasonably practicable’. Where an accused was half an hour late in appearing at court it was held that he/she had absconded (R v Scott [2007] EWCA Crim 2757). In Laidlaw v Atkinson (1986) The Times, 2 August, it was held that being mistaken about the day on which one should have appeared was not a reasonable excuse.

Also, there is no requirement on the court to inquire as to whether a person arrested for failing to comply with bail conditions had any reasonable excuse for breaching bail (R (On the Application of Vickers) v West London Magistrates’ Court (2003) EWHC 1809 (Admin)).

Failure to give to a person granted bail in criminal proceedings a copy of the record of the decision does not constitute reasonable cause for that person’s failure to surrender to custody (s. 6(4)).

Failing to answer bail granted by a police officer is a summary offence and the decision to initiate proceedings is for the police/prosecutor using the written charge and requisition procedure. Such an offence may not be tried unless proceedings are commenced either within six months of the commission of the offence, or within three months: (a) after the person surrenders to custody at the appointed place; (b) is arrested, or attends at a police station, in connection with the bail offence or the offence for which he/she was granted bail; or (c) the person appears or is brought before a court in connection with the bail offence or the offence for which he/she was granted bail (s. 6(12)–(14)).

Question 51

Remands in Police Custody

Answer 51

Where a person is remanded in custody it normally means detention in prison. However, s. 128 of the Magistrates’ Courts Act 1980 provides that a magistrates’ court may remand a person to police custody:

• for a period not exceeding three clear days (24 hours for persons under 18 (s. 91(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) (s. 128(7));
• for the purpose of inquiries into offences (other than the offence for which he/she appears before the court) (s. 128(8)(a));
• as soon as the need ceases he/she must be brought back before the magistrates (s. 128(8)(b));
• the conditions of detention and periodic review apply as if the person was arrested without warrant on suspicion of having committed an offence (s. 128(8)(c) and (d)).