Over time, it appears to have become accepted custom that where there is as yet insufficient evidence to charge an accused but it is necessary to continue to investigate without having to be held in custody (further to s 37(2)  of the Police and Crime Evidence Act 1984 (‘PACE’)) that police bail will be granted (sometimes with onerous conditions).  However, section 37 of PACE clearly sets out the duty on a custody officer to consider whether there is sufficient evidence to charge or if the officer “determines that he does not have such evidence before him” to decide to release the person arrested “either on bail or without bail” unless he considers that there are reasonable grounds to authorise the person to be kept in police detention.

Are defence solicitors all too ready to accept police bail? Should we be asking custody officers to exercise their power to release our clients without charge and without bail (pursuant to s37(7)(c) PACE)?

Theresa May MP has recently announced a Home Office consultation on statutory time limits for police bail, stating that it “cannot be right that people can spend months or even years on pre-charge bail with no oversight”.  A statutory time limit may well address some of the issues criticised today; it may put pressure on police to investigate things as expeditiously as possible and it would no doubt provide clients with more certainty, rather than dealing with seemingly indefinite investigations (although it should be noted, as ever, the potential proposed opportunity to extend any time limit in “exceptional circumstances”).  But should we also be considering why clients should be on police bail at all?

All too frequently, unconditional bail is imposed which simply requires a person to attend a police station at a later date.  It is difficult to see why such bail is required.  The police are more than able to re-arrest a person (or arrange a voluntary attendance), should later evidence come to light which requires a further interview or provides sufficient evidence to charge.   It cannot be said that the decision to release a client without bail is to suggest that the case against them has been dropped.  Section 37(8) PACE confirms that where a person is released with or without bail and at the time of that release “a decision whether he should be prosecuted for the offence for which he was arrested has not been taken” then they should so inform them.

It seems that police bail (with or without conditions) has become an established procedure, one that defence solicitors readily accept as a lesser evil of their client being remanded into custody. But let’s consider that further. Pre – charge bail is not an alternative to custody, it is an alternative to unconditional release.  It is correct that PACE allows a maximum time of detention of 24 hours (s 41 PACE) which can be extended to 36 hours with further authorisation (s 42 PACE).  However, if a custody officer has already informed you that your client should be released on police bail it is difficult to see on what grounds their ongoing detention could be authorised.  Section 37(2) and 42(1) of PACE highlight that ongoing police detention can only be authorised when there are “reasonable grounds” to do so; where it is “necessary to preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning”.  However, if the custody officer has already determined that this is not required, and therefore he is suitable for police bail, then how can it be said that such reasonable grounds exist?  So if a custody officer responds to a request for the client to be released without bail what choice does the custody officer have?  It seems that any ongoing police detention would be unlawful and, for clients willing to sit it out, it seems an emergency application could be made to the High Court for a writ of habeas corpus to challenge the lawfulness of their detention.  A brave move indeed but it may result in them being released without bail, or without onerous conditions, which for clients now on bail for over a year may well be worth the risk.