Police chiefs guide officers to impose bail conditions protecting victims and vulnerable people

Legislative changes to pre-charge bail through the Policing and Crime Act 2017 introduced the presumption that suspects should be released from police detention while remaining under investigation, known as ‘released under investigation’, unless bail is deemed both necessary and proportionate. The Act also introduced statutory time limits and judicial oversight of extensions of bail beyond three months.

Concern that pre-charge bail has fallen considerably, including in domestic abuse, sexual offences and cases involving vulnerable people, has prompted the new guidance.   

Her Majesty’s Inspectorate of Constabulary and Fire Services (HMICFRS) reviewed use of bail and found in the six months following the new legislation, use of bail fell by 75 percent and 65 per cent in domestic abuse cases. In December 2018, the number of defendants remanded on bail by the police prior to appearing at court decreased by 24 per cent, while the number remanded in custody decreased by seven per cent. The rate of those remanded in custody for the most serious (indictable offences) has remained broadly stable throughout these changes.

National Police Chiefs Council Lead for Bail Management, Chief Constable Darren Martland said:

“We’ve assessed how changes to bail have been implemented.  We are concerned that a reduction in bail could mean missed opportunities to protect vulnerable people and put conditions on violent offenders that could prevent reoffending.

“There’s currently insufficient evidence to judge whether the decrease in use of bail puts vulnerable victims at greater risk but we want to minimise the potential risk. We are sending a clear message to officers that bail is a legitimate tool and it should be used to protect victims or vulnerable people when necessary and proportionate. 

“New operational guidance issued to officers reinforces the importance of conducting investigations as quickly as possible. It will help officers consider the vulnerabilities and risks in each case and determine the appropriate course of action. We will continue to assess the effects of recent changes to the law and implementation and will revise the guidance if necessary.”

The guidance states investigators ‘should aim to finalise investigations during the first period of detention wherever possible’ as this ‘allows a more expedient investigation. However, it is recognised that often this may not be practical due to the nature of the crimes we investigate and investigators will often find it is necessary to arrest the suspect at a much earlier stage in the investigation.’

The consideration of whether or not to apply bail must take into account all the circumstances of a case, including the necessity to support and protect victims and witnesses, and ensure public safety.  Decisions should be made by investigating officers, custody officers, and supervising officers. The guidance makes clear the circumstances in which pre-charge bail should be used:

• If there is a risk of a suspect committing further offences or failing to surrender to custody;
• The suspect being a threat to the public;
• The suspect interfering with an investigation or witness;
• Or for their own protection (if they are vulnerable).

If a suspect has been arrested in connection with an offence involving vulnerable people or domestic abuse then serious consideration must be given to the use of bail with conditions in order to safeguard victims. If pre-charge bail is not used, officers should document their decision making. Victims and witnesses should be informed that a suspect has been released under investigation and given advice about what to do if they are targeted by the suspect.  The guidance encourages officers to seek counsel from senior colleagues in these cases.

Women’s Aid Acting Co-Chief Executive, Nicki Norman said:

“Following our concerns that some dangerous perpetrators of domestic abuse are being released while investigations are ongoing without basic bail conditions, this new guidance is an important step forward.

“We are pleased to see the guidance state clearly that if a suspect has been arrested in connection with a domestic abuse offence ‘serious consideration’ must be given to imposing bail with conditions in order to safeguard the victim and there must be documented decision-making if pre-charge bail has not been used. The impact of this new guidance must be robustly monitored to ensure that forces are using pre-charge bail to keep victims of domestic abuse safe.”

Minister for Policing and the Fire Service, Nick Hurd, said:

“Bail is a vital policing tool for investigating crime and providing protections for victims and witnesses.

“I am therefore pleased to see the NPCC issuing new operational guidance to help police forces take these important decisions and use pre-charge bail whenever it is necessary and proportionate.”

College of Policing lead for Crime, David Tucker said:

“We are concerned that the change in legislation has led to a significant reduction in the use of pre-charge bail by police forces in England and Wales. Whilst there is no evidence of harm being caused as a result of the reduced use of bail, it is important that police officers and staff use all legal powers at their disposal to effectively manage risk to the public.

“The College will soon be publishing a short briefing video to support officers in their decision making regarding use of arrest and bail to manage risk of harm.”

Further information:

The guidance can be found here - with Appendix A and Appendix B.

The police can authorise three main applicable bail periods:

• Initial applicable bail period for 28 days authorised by an inspector.
• Extension to the initial applicable bail to three calendar months from the bail start date authorised by a superintendent.
• Further extension to the applicable bail period of three calendar months for cases designated as being exceptionally complex, authorised by an assistant chief constable or commander.

All further extensions to the applicable bail period have to be authorised by a magistrates’ court and when authorising bail, the suspect and/or legal representative must be allowed to make representations.

The guidance includes advice on using Postal Charge and Requisitions, which instruct suspects to attend a specific court, to address challenges in serving these requisitions resulting in suspects failing to appear at court. 

The guidance directs officers to conduct their investigations expeditiously in cases where suspects have been released under investigation as well as ensuring a thorough investigation plan, and estimated end date for their enquiries. Custody officers should warn individuals released under investigation against witness intimidation, perverting the course of justice or harassment making clear they will be liable to further arrest should they engage in any of these, or other crimes.

Data tables provided by the Ministry of Justice can be found here (Table 4.1), from the following statistical bulletin.

HMICFRS PEEL 2017 findings can be found in the following report