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Policing and Crime Act 2017 – Implications for Police Bail – A Ticking Time Bomb

The Policing and Crime Act was given Royal Assent on 31 January 2017. It is anticipated to come into force in April 2017. It introduces a presumption of release without charge and without police bail. However, suspects can be released on police bail if it is necessary and proportionate. The legislation introduces long called for time limits for police bail. This article examines the effectiveness of the changes and highlights some worrying new additions that all criminal practitioners should be aware of.

The legislation introduces applicable bail periods (“ABP”). The ABP depends on what type of case. The ABP for a Serious Fraud Office (“SFO”) case is 3 months and for a Financial Conduct Authority (“FCA”) case or any other case 28 days. The clock starts ticking the day after the day the person was arrested.

These initial periods can be extended by the police if certain conditions are met which include reasonable grounds for suspecting the person is guilty, further time needed for a decision on charge or further investigation, proceedings conducted diligently and expeditiously and bail is necessary and proportionate.

For an FCA or any other case that is not ‘exceptionally complex’ the period can be extended to 3 months from the persons bail start date. Note SFO cases get this from the outset.

If the case is determined as ‘exceptionally complex’ and the above conditions are met the period can be extended to 6 months from the bail start date. This will be the majority of SFO cases.

To extend a police station ABP past 3 months or 6 months for an exceptionally complex case, court applications need to be made. The court can extend the ABP from 3 months to 6 or 9 months. Or from 6 months to 9 or 12 months. This depends on the above conditions being met and whether the decision or investigation is unlikely to be completed in the shorter time frame.

A further extension of 3 months or 6 months can be granted by the court.

Any ABP is suspended the day a case is sent to the CPS for a charging decision. The ABP clock continues to tick when the case is given back to the police. However, if the remaining time is less than 7 days, the police are automatically given 7 days.

It should be noted that any application to extend an ABP must be made before the expiration of an ABP. It cannot be made retrospectively. However, the court can extend the ABP to determine the application. The court also has the power to refuse the application if it appears that it would have been reasonable for the application to be made in time for it to have been determined before the end of the ABP.

It is concerning that for applications to extend the ABP before the court the defence do not have to be provided with much information at all. A sensitive information form can be produced which the defence do not see if certain criteria are met. The court can even exclude legal representatives from any part of the hearing due to sensitive information.
Whilst many may welcome the new legislation as it provides time limits for police. The reality is that the provisions are onerous, the disclosure obligations on the police weak and the provisions do not take into account people being investigated but not on police bail.

The Act also criminalises failing to comply with police bail travel restrictions. The Act is the first to criminalise a breach of bail conditions.

Guidance on the new legislation can be accessed here.