Bail

• Introduction
• Police Bail
  • Pre-Charge
  • Breach of Pre-Charge Conditions
  • Post Charge
  • Breach of Post Charge Conditions
  • Variation of Police Imposed Bail Conditions
• The Right to Bail
  • Exclusions to the Right to Bail
  • Exceptions to the Right to Bail
• Opposing Bail: Information for prosecutors
  • Victims and Witnesses
  • Procedure
• Electronic Monitoring as an alternative to Custody
  • Test for the Court
  • Other considerations
  • Credit for period of remand on bail with an electronic tag
  • Calculating the credit period
• Conditions of Bail
  • General
  • Types of Condition
  • Credit for Period of Remand on Bail with an Electronic Tag
  • Youths
  • Variation/Appeal
• Reconsideration of Bail
• Breach of Conditions of Bail
• Remands into Custody
  • Length of Remand into Custody
  • Appearance by Live Link
  • Warrants of Further Detention – pre-charge: s.43 PACE
  • Detention in a Police Station – post charge: s.128(7)(8) MCA
  • Detention in Police Custody for Drug Offenders: s.152 CJA
  • Technical Bail
• Youth Bail
• Youth Remands
  • Remands to Local Authority Accommodation
  • Local Authority Remand with Conditions
  • Remands to Youth Detention Accommodation
  • Secure Accommodation Orders
  • Local Remands
• Defendants with Mental Health Conditions and Disorders
• Appeals in relation to Grant of Bail - by the Prosecutor
  • From the Magistrates Court
  • Factors to Consider
  • Youths
  • From the Crown Court
  • Habeus Corpus/Judicial Review
  • Bail Appeals by the Defence
• Failure to Surrender
  • Commencing a prosecution
  • Evidential Considerations
  • Reasonable Cause (excuse)
  • Issuing of Medical Certificates
  • Public Interest Considerations
  • Procedure
• Bail Applications involving the Official Solicitor
• File Endorsements
• Annexes

Introduction

The decisions on bail, in criminal proceedings, represent an important stage in the prosecution process. The results of these decisions can have far reaching consequences for victims of crime and the public in general.

From the viewpoint of the defendant, bail decisions made by a Court can result in the deprivation or restriction of liberty for a substantial period of time.

It is for these reasons that the Crown Prosecution Service has included the way in which these decisions are made as a benchmark of the quality of our case management and preparation in our Casework Quality Standards.

A benchmark of the quality of CPS case preparation is that we are:

"Continually reviewing the remand status of defendants, and ensuring that custody time limit cases are dealt with in accordance with the national standard.

Custody Time Limits are dealt with elsewhere in the Legal Guidance.

A benchmark of the quality of CPS case presentation is that we are:

"Opposing bail where it is appropriate to do so, taking account of the risk posed to victims, the public and the course of justice."

It is vital that Prosecutors recommend the appropriate course of action to a Court in connection with bail and that sufficient comprehensive information is available to a Court in connection with the decision whether or not to grant bail. It is also vital that the reasons for opposing bail, representations made by the Defence and the decisions of courts are recorded on the case file or CMS.

These standards and much of the guidance below will apply whether the question of bail is before a magistrates' court, a Youth Court, a Crown Court or the High Court.

Police Bail

Pre-Charge

Pre-charge police bail can be imposed in a number of different circumstances including:

1. Where there is as yet insufficient evidence to charge a suspect and they are released pending further investigation (sections 34(2), 34(5) and 37(2) of the Police and Criminal Evidence Act 1984 (PACE)
2. Where the police consider that there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision (s.37(7)(a) PACE).
3. Where it is no longer necessary to detain a suspect to secure or preserve evidence or obtain it by questioning, yet the police are not in a position to charge, the suspect must be released, but it is open to the police to release them on bail or without bail where there is a need for further investigation of any matter for which he was detained.

It is for the police to decide whether a suspect is released with or without bail and if released on bail, whether any conditions of bail should be imposed. Where it is practicable to do so investigators should seek the views of victims on bail and possible bail conditions (s.47ZZA PACE). PACE sets out the relevant law and more detailed guidance is available at Annex 8 (for pre-charge bail following arrests before 28 October 2022) and Annex 9 (for pre-charge bail following arrests after 28 October 2022).

The following points are of particular relevance to prosecutors but they should be read with the guidance in Annexes 8 and 9.

• The use of police pre-charge bail for further investigation (with or without conditions) is subject to the pre-conditions contained in s.50A PACE and certain restrictions as to the time periods involved in s.47ZA to s.47ZM PACE. Bail in these circumstances must be “necessary and proportionate” and the police should consider the factors contained in s.50A(2) PACE as well as any views expressed by the victim (s.47ZZA PACE).
• Police pre-charge bail in cases referred to the CPS for a charging decision under s.37((7)(a) PACE is not subject to the time periods and pre-conditions in s.50A PACE.
• A police decision to release without bail (or release under investigation/RUI as it is commonly known) is not subject to the time periods and pre-conditions in s.50A PACE.
• In cases to which bail time limits apply it is for the police to monitor and extend those periods including in making applications to the court. In some cases, the CPS will be invited to designate a case as “exceptionally complex so that an Assistant Chief Constable/Commander can consider a bail extension. Guidance for those cases is included in Annexes 8 and 9. Such requests should be considered by a DCCP or Deputy Head of Division. It should be noted that cases involving the National Crime Agency, the Serious Fraud Office, HM Revenue and Customs and the Financial Conduct Authority are subject to different time limits.

Breach of pre-charge bail conditions

The police have a power of arrest where an officer has reasonable grounds for believing that conditions imposed on pre-charge bail have been breached (section 46A(1A) PACE). A breach of pre-charge bail conditions is not of itself a criminal offence (although a breach may amount to a separate offence such as assault or witness intimidation in which case the police may choose to arrest for breach and/or any new offence). There is no provision for alleged breaches of pre-charge bail to be put before the court as there is with post-charge bail.

Once in detention, a decision has to be made as to whether the suspect can be charged with the offence for which they were bailed. If authorisation to charge has been provided, the arrested person can be charged accordingly. If authorisation has not been given, then this can be sought whilst the suspect is detained. The suspected breach of bail conditions may necessitate the Threshold Test being applied where previously the grounds for applying this test were not met.

The Police Crime Sentencing and Courts Act 2022 introduced a new s.47(6A) PACE that adds three hours to the PACE custody clock when an individual is arrested on suspicion of a breach of pre-charge bail. This will provide investigators with more time to complete any outstanding lines of enquiry and seek a charging decision in these cases where they are in a position to do so. Before this provision came into force (when the first arrest for the offence under investigation was on or after 28 October 2022) such an arrest could leave the police with little time on the PACE custody clock if that time had been used during an earlier period of detention.

If a charge is not authorised, the suspect can be released without charge, either on bail or without bail (s.37C(2)(b) PACE). Section 37C(4) states that if a person is released on bail under s.37C(2)(b), then that person shall be subject to whatever conditions applied immediately before their arrest for breach. There is no power to vary the conditions of bail that previously applied.

Post Charge

Where there is sufficient evidence and the suspect is charged with an offence (section 37(7)(d) PACE), the police can keep them in detention or release them on bail to appear at court at a future date and may impose conditions on that bail (section 47(1A) PACE). It should be noted that (either pre or post charge) the police cannot impose conditions on a suspect:

• to reside at a bail hostel;
• to attend an interview with a legal adviser;
• to make them or herself available for enquiries and reports;
• that contain electronic monitoring requirements.

Breach of post charge bail conditions

The procedure for dealing with breach of police imposed bail conditions that are in place prior to the first court appearance matches the procedure for dealing with breaches of court imposed conditions - see below.

Variation of police imposed bail conditions

Conditions imposed by a custody officer may be varied by:

• The same custody officer or another custody officer serving at the same police station on receipt of a request from the person to whom bail was granted There is no stated procedure for this process, but the police will normally require that a request is in writing. More onerous conditions can be imposed.
• The magistrates' court on application by the suspect (section 47(1E) PACE). The magistrates can confirm the same conditions, impose different conditions, or direct that bail shall be unconditional. It continues to be police bail and the procedure for applying for the variation is set out at: Criminal Procedure Rules, Part 14, bail in the magistrates' court and the Crown Court - specifically Criminal Procedure Rule 14.6. The court must hear the application no later than the fifth business day after receipt of the application.

At the pre-charge stage, applications to vary police imposed bail conditions will not normally involve the CPS just as applications to extend pre-charge bail periods do not normally involve the CPS (see the separate guidance on police pre-charge bail at Annex 8 and 9), Such applications should normally be dealt with by the police.

Post-charge, and prior to the first Court hearing, the CPS will deal with applications to a Magistrates’ Court to vary conditions of bail imposed by the Police. If the CPS has already received a file from the Police, the prosecutor should ask the Police to give their view of the application.

If the CPS has not already received a file, the prosecutor should request a file from the Police. The Police will supply either the appropriate file, or if this is not yet available, sufficient information relating to the circumstances of the case to enable an application to be dealt with effectively. This information should include (but is not limited to) the suspect's antecedents, an indication of the views of the police regarding the application, and any relevant material which falls to be disclosed under the common law duty of disclosure.

The Right to Bail

Under section 4 Bail Act 1976, on each occasion that a person is brought before a court accused of an offence, or remanded after conviction for enquiries or a report, he must be granted bail without condition, if none of the exceptions to bail apply.

Prosecutors must keep the issue of bail under review throughout the life of the case.

Conditions of bail may only be imposed where necessary to ensure that the exceptions to bail are addressed. Only where conditions are not sufficient to address the exceptions to bail should a remand in custody be sought.

Under section 5 Bail Act 1976, the court or officer refusing bail or imposing conditions must give reasons for their decision.

Exclusions to the right to bail

The general right to bail does not apply in the following circumstances:

Murder

The power of magistrates to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, is now removed by section 115(1) Coroners and Justice Act 2009. This does not apply to attempted murder or conspiracy to murder.

Where a person is charged with an offence of murder or attempted murder, and has previously been convicted in the UK or court of an EU Member State of an offence of murder, attempted murder, rape or a serious sexual offence (section 25(2) Criminal Justice and Public Order Act 1994), he shall only be granted bail where there are exceptional reasons, which justify it.

Section 114 Coroners and Justice Act 2009 amends Schedule 1 Bail Act 1976. Section 114(2) Coroners and Justice Act 2009 provides that bail may not be granted to someone charged with murder unless the court is satisfied that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person. In coming to that decision, the court must have regard to the nature and seriousness of the offence, the suspects character and antecedents and his record in relation to previous grants of bail.

Manslaughter and Serious Sexual Offences

Where a person is charged with an offence of manslaughter, rape or a serious sexual offence, and has previously been convicted in the UK or court of an EU Member State of an offence of murder, attempted murder, rape or a serious sexual offence (section 25(2) Criminal Justice and Public Order Act 1994) he shall only be granted bail where there are exceptional reasons, which justify it.

Note: Where a person charged with one of the offences referred to above has a previous conviction for manslaughter or culpable homicide in the UK or EU court, he shall only have his right to bail restricted where he received a sentence of imprisonment or detention upon conviction.

Class A Drug Users - Designated areas only

In certain parts of the country, Paragraphs 6A – 6C Part I of Schedule 1 Bail Act 1976 apply which set out the exception to bail for adult drug users where their offending is drug-related, and where they have been required to undergo drug testing but have failed to comply with that requirement.

Exceptions to the right to bail

The grounds for refusing bail are set out in Schedule 1 Bail Act 1976.

A person may be denied bail if there are substantial grounds for believing that any of the exceptions in Schedule 1 Bail Act 1976 are made out. Different exceptions will apply depending on the category of offence and the flow charts at Annexes One - Six set out the approach to be taken by the court in deciding whether to withhold bail to a person charged with a particular category of offence.

Annex One: Adult Offender: Indictable only or Either Way Offence

Annex Two: Adult Offender: Summary Imprisonable Offence

Annex Three: Adult Offender: Non Imprisonable Offence

Annex Four: Youth Offender: Indictable only or Either Way Offence

Annex Five: Youth Offender: Summary Imprisonable Offence

Annex Six: Youth Offender: Non Imprisonable Offence

Note:

1. In cases involving criminal damage where the court is clear that the value involved is less than £5000, these offences are treated for the purposes of bail as if they were summary only: see Section 22 Magistrates' Courts Act 1980.
2. Certain exceptions to bail are subject to the "no real prospect" test where a remand should not be sought for an un-convicted defendant who has no real prospect of receiving a custodial sentence. In less serious cases prosecutors should give careful consideration to the surrounding circumstances of the offence, the defendant's antecedents and any relevant sentencing guidelines in deciding whether there is a "real prospect" of a custodial sentence. Where this is not clear cut, it may be more appropriate to leave it to the court to decide and to make objections to bail in the usual way.
3. It is vital that prosecutors note that this is not a consideration in cases involving domestic violence or any other risk of physical or mental injury to persons associated with the defendant.
4. Post-conviction applications.
5. Pursuant to section 4(2) Bail Act 1976, there is no general right to bail for convicted persons.
6. However, where a person has been convicted and is then brought before either the magistrates' or Crown Court to be dealt with for breach of the requirements of a community order or breach of certain youth community orders (section 4(3) Bail Act 1976); or a court adjourns a case for enquiries or a report (such as a pre-sentence report) to be made in order to assist the court in dealing with the offence (section 4(4) Bail Act 1976), the right to bail remains. Accordingly, in these circumstances, prosecutors should make appropriate representations (including any objections) as to the grant of bail.
7. By inference the presumption to bail does not apply to those defendants who appear before a court post-conviction where proceedings are adjourned for any other reason, for example committal for sentence.
8. In this situation, prosecutors are reminded of their duty to assist the court in providing information that may be relevant to their decision.

Opposing Bail: Information for prosecutors

Information that prosecutors may need from the police in order to decide whether the exceptions to bail are made out may include:

• Any history of offending, absconding or witness interference whilst on bail in the current or in previous proceedings;
• Any express or implied intention to continue to offend, abscond or interfere with the course of justice and any apparent motive for doing so (for example, to obtain money for the purpose of drug purchases);
• The extent to which the defendant has continued to offend whilst subject to other orders of the Court, such as suspended or deferred sentences and conditional discharge, and any relevant breach proceedings in respect of other sentences as the presence of one or more of the features may demonstrate an unwillingness or inability to comply with other orders of the Court such as bail conditions;
• Any previous breaches of bail conditions in earlier or concurrent proceedings or a history of absconding and failing to surrender to custody;
• Any evidence of violence or threats towards or undue influence over the victim of the crime, or other vulnerable witnesses;
• The degree of temptation to abscond. It should be noted that the risk of failing to surrender owing to the severity of the likely sentence, if convicted was a matter to be assessed in the light of other relevant factors. The likely sentence could not of itself provide grounds for a remand in custody (R (Thompson) v Central Criminal Court [2006] A.C. 9);
• Any factors that could increase the risk that the defendant may fail to surrender to the court such as links to other jurisdictions, for example family, friends and/or assets including properties. It may be appropriate to consider a defendant’s travel history in this context. Prosecutors should also consider whether the relevant jurisdiction has an extradition agreement with the UK and in particular, those that will not extradite their own nationals to the UK. However, it should not be assumed that bail will be inappropriate by virtue of a defendant’s links with a particular overseas jurisdiction. Prosecutors should consider the seriousness of the offending, the strength of the links to the other jurisdiction(s) compared to the defendant’s links to the UK, and assess the risk of failure to surrender on a case by case basis.
• Any factors which might affect the defendant’s ability to comply with bail conditions, such as drug or alcohol dependency. Care must be taken, however, with mentally disordered offenders to ensure that the risks of the future events are reduced in a way most compatible with their proper care and treatment (for example by diversion to a recognised medical treatment scheme or by a remand on bail to an appropriate probation or medical facility); and
• The effect that the seriousness of the proceedings and the likely penalty of conviction may have upon the defendant. Generally speaking, the more serious the offence and the higher the likely penalty, the stronger will be the need to guard against one of the future risks.

Victims and Witnesses

When dealing with bail hearings in court, prosecutors should ensure that the victim's views are considered, in deciding whether to seek a remand in custody.

Prosecutors are also reminded to ensure that victims are informed of bail decisions especially in cases involving 'vulnerable' and 'intimidated' victims and witnesses.

See further:

• Code of Practice for Victims of Crime
• Direct Communication with Victims and Witnesses
• Care and Treatment of Victims and Witnesses
• Homicide cases - Guidance on CPS service to Bereaved Families

Opposing Bail: Procedure

The procedures governing applications and appeals in relation to bail are set out in Part 14 Criminal Procedure Rules.

Under Schedule 1 Part IIA Bail Act 1976, a person is entitled to be granted bail at the first hearing at which he appears charged with an offence. If a remand in custody is sought, he may apply for bail using any argument of fact or law that he chooses.

If bail is refused, Paragraph 1 Part IIA Bail Act 1976 applies and the court is under a duty to consider bail at each subsequent hearing at which the defendant appears (Remands in absence under the Magistrates Court Act 1980 are not counted). At the first hearing after which bail is refused, any argument as to fact and law may be advanced and the court must consider it. Thereafter, Paragraph 3 Part IIA Bail Act 1976 states that court need not hear arguments as to fact or law that it has heard previously, unless there has been a change or circumstances that might have affected the earlier decision – see R v Dover & East Kent JJ., ex p. Dean [1992] Crim. L. R.33.

In exceptional cases where there is a material change in circumstances, the prosecutor can ask the court to withdraw bail that has previously been granted – see section 5B Bail Act 1976 and R (Burns) v Woolwich CC and CPS [2010] EWHC 129 (Admin).

Murder Cases - section 115(1) Coroners and Justice Act 2009.

Where a murder case is to be sent to the Crown Court, the magistrates have no jurisdiction to consider bail. The papers will be sent to the Crown Court and will be placed before a Crown Court judge authorised to hear murder trials or preliminary hearings. That judge will decide if there should be a hearing and if the defendant should be produced. If no murder-ticketed judge is available, the list officer will refer the case to the Resident Judge.

The hearing/consideration of bail must be within 48 hours, beginning with the day after the day on which the magistrates send or refer the case (excluding Saturdays, Sundays, Christmas Day, Good Friday and Bank Holidays).

The CPS must be ready to deal with the section 115 hearing in the Crown Court irrespective of whether there is to be a bail application as the prosecutor will need to assist the judge with information to establish a legitimate reason for withholding bail.

In R (on the application of A) v Lewisham Youth Court [2011] EWHC 1193 it was confirmed that the power of the youth court to determine the appropriate form of custody was not displaced by section 115 Coroners and Justice Act 2009. Youths charged with the serious offences listed in section 115 should be dealt with in accordance with the procedure as set out at Annex 4, Annex 5 and Annex 6 and in the section on Youth Bail and Youth Remand below.

Electronic Monitoring as an alternative to Custody

Electronic Monitoring (EM) is an alternative to custody that is deployed to monitor compliance with another condition of the bail order. Prosecutors should always consider whether the risk of the Defendant being bailed can be mitigated through the use of Electronic monitoring, and in appropriate cases remind the court of their power to order monitoring if they find sufficient grounds to remand a Defendant.

Forms of Electronic Monitoring:

• Curfew – a requirement specifying a time range that the individual must remain within a specified addresses – often a 12-hour period (typically 7pm until 7am). It is monitored with a radio frequency (RF) tag, linked to a base station within the home and if the person is not in or leaves the address during curfew hours, the monitoring centre will be alerted.
• Location monitoring – a tag that uses global positioning system (GPS) to monitor an individual’s location. Location monitoring tags also have RF capability, allowing for curfew and location to be monitored using a single device. Location monitoring tags need to be recharged and an alert will be raised if they are not recharged.

The police should provide their views within the MG7 on whether electronic monitoring is available and suitable. It may be that together with other conditions, a tag would reduce the risk of the Defendant committing further offences or failing to surrender. The prosecutor may require information from the police regarding where the Defendant will live, the provision in place for monitoring and consider whether a curfew or exclusion zone would be appropriate.

Monitoring is conducted via a worn device referred to as a personal identification device (PID) or more commonly a tag. The tag is designed to be hard to remove and is capable of providing evidence of tampering which would constitute a violation of the EM conditions.

Test for the Court

Electronic Monitoring can only be imposed by the court in cases where they would otherwise be ordering a remand into custody.

Section 3AB Bail Act 1976:

1. A court may not impose electronic monitoring requirements on a person who has attained the age of eighteen unless each of the following conditions is met.
2. The first condition is that the court is satisfied that without the electronic monitoring requirements the person would not be granted bail.
3. The second condition is that the court is satisfied that the necessary provision for dealing with the person concerned can be made under arrangements for the electronic monitoring of persons released on bail that are currently available in each local justice area which is a relevant area.

The threshold for remanding the Defendant into custody must therefore be passed before a court is satisfied that the risks can be mitigated by the use of a tag. Prosecutors will need to satisfy the court that the criteria is met for a remand in custody before an electronic monitoring condition can be imposed.

Other considerations

Once the court have established that the grounds of remanding the Defendant into custody have been met and that there is local availability for a tag to be deployed the court must be satisfied that it is a suitable option. There are a number of considerations for the court to consider the Defendant’s eligibility for Electronic Monitoring:

The court will need to be satisfied that the person is physically able to wear a tag. For location monitoring to take place the tag must be fitted to an ankle, in some cases RF tags can be secured to a wrist but the default position is the ankle, therefore consideration will need to be given to conditions which may make wearing the tag unworkable.
The court should also consider whether the person will comply   with the requirements of the electronic monitoring, including the charging regime required for a GPS tag.
Those who are of no fixed abode and cannot be suitably accommodated, will not be able to be electronically monitored as the necessary equipment cannot be installed. The same applies where a landlord/owner of a property refuses permission for the equipment to be installed.
Prosecutors should note in particular that suspected breaches of an electronic monitoring bail condition will not lead to an immediate "blue light" response and the police will not necessarily have details of a defendant's current location (even when location monitoring is being used) Location monitoring would not be appropriate, for example, for cases where the impact of a breach would create a risk of serious harm.

Credit for period of remand on bail with an electronic tag

Section 240A Criminal Justice Act 2003 provides that a court must direct that the period for which a defendant was subject to a curfew and an electronic monitoring condition, to count as time served by the offender as part of the sentence.

The credit period is the number of days represented by half of the sum of the number of days on which the offender is subject to an electronically monitored curfew of at least nine hours per day. The day on which the conditions are imposed is counted but the last day is excluded because it counts as the first day of the sentence.

Note: No credit period is available for monitored curfews which are less than 9 hours.

The court must state in open court:

the number of days on which the offender was subject to the relevant conditions, and
the number of days in relation to which the direction is given.

Calculating the credit period

The court, which first imposes the electronically monitored curfew, will commence a record which documents the conditions imposed and the date on which they are imposed. The record will also carry information about breach of bail. This record will be made available to the sentencing court.

For Electronic Monitoring of Youth Offenders, please see the below guidance on Youth Bail

Conditions of Bail

General

Bail conditions should only be imposed in order to address any of the risks that would be inherent in granting unconditional bail. In proposing (or considering) conditions of bail, prosecutors must ensure that that they are necessary, reasonable, proportionate and capable of being enforced. Consideration should also be given to the extent to which they meet the objections to bail. Conditions that are unsuitable may give rise to a continuing risk of further offending, of absconding, or of harm to the victim(s) or public and prosecutors should be prepared to challenge their imposition or seek further evidence from the police before acceding to them, should they have any concerns.

Types of Condition

• Reporting to a police station: This must be necessary to avert the risk it is designed to meet. For example, care should be taken to ensure that the interval between reporting times is not so long as to be insufficient to prevent a defendant from absconding.
• Doorstep condition: It was held in R (CPS) v Chorley Justices [2002] EWHC 2162 (Admin) that a doorstep condition was not contrary to the ECHR. Where it is proportionate and necessary to enforce a curfew or a residence condition imposed for one of the statutory purposes, then such a condition may be appropriate.
• Murder cases: Under section 115 Coroners and Justice Act 2009 a Crown Court must impose conditions in accordance with section3(6A) Bail Act 1976 providing for the medical examination of the defendant. The Court need not impose the conditions if it is content that satisfactory reports have already been obtained.
• Not to drive: The court must be satisfied that such a condition is necessary and, in doing so, ought to consider whether its imposition might have unexpected and unjust results: R v Kwame (1978) 60 Cr. App. R. 65.
• Sureties can be expressed as being continuous throughout the court proceedings and if they are taken on these terms, there is no requirement for the surety to attend each hearing. Prosecutors should be prepared to assist the court to explore the status and means of the potential surety, in the interests of justice and the surety. The prosecutor should be prepared to ask for time to make enquiries as to the sufficiency of the surety.
• Securities should be lodged with the court or, in exceptional circumstances, with the police, and not with the CPS.
• Electronic tagging: Where the court is satisfied that there is local provision for electronic tagging, and but for the tagging of the offender, he would not be granted bail, it may order that this condition be imposed (section 3AB Bail Act 1976).
• Electronic tagging with GPS location monitoring: As above but with the additional facility to impose an element of location monitoring such as exclusion from a particular locality or around a particular address.

Credit for period of remand on bail with an electronic tag

Section 240A Criminal Justice Act 2003 provides that a court must direct that the period for which a defendant was subject to a curfew and an electronic monitoring condition, to count as time served by the offender as part of the sentence.

The credit period is the number of days represented by half of the sum of the number of days on which the offender is subject to an electronically monitored curfew of at least nine hours per day. The day on which the conditions are imposed is counted but the last day is excluded because it counts as the first day of the sentence.

Note: No credit period is available for monitored curfews which are less than 9 hours.

The court must state in open court:

• the number of days on which the offender was subject to the relevant conditions, and
• the number of days in relation to which the direction is given.

Calculating the credit period

The court, which first imposes the electronically monitored curfew, will commence a record which documents the conditions imposed and the date on which they are imposed. The record will also carry information about breach of bail. This record will be made available to the sentencing court.

Youths

The court may impose conditions that appear to be necessary for the same reasons as adults save that the court may also impose a condition "for his own welfare or in his own interests" (section 3(6)(ca) Bail Act 1976).

Variation/Appeal

Where a court has granted bail, the prosecutor or the Defence may apply to the magistrates' court (or, where a person has been committed to the Crown Court for trial or sentence, to the committing Court or to the Crown Court) for conditions of bail to be varied or for conditions to be imposed where unconditional bail was granted - section 3(8) Bail Act 1976.

Under section 16 Criminal Justice Act 2003, a person who has been unsuccessful in securing the variation or lifting of a bail condition may appeal that decision to the Crown Court.

Reconsideration of Bail

The prosecutor may apply under section 5B Bail Act 1976 to have bail reconsidered by the magistrates' court. This only applies to bail granted by the magistrates' court or the police, and only in relation to offences triable on indictment or either way. The prosecutor may apply to vary the conditions of bail, impose conditions on bail which had been granted unconditionally, or revoke bail.

The prosecutor may only apply on the basis of information which was not available to the court or the police when the original decision was taken. It is unclear whether information which the custody officer should have known or could reasonably be expected to have known will be treated by the court as not having been available. In the absence of case law, the prosecutor should treat such information as not having been available to the police.

If the information is withheld from the court (for example by the Police or the CPS), then it was not available to the court, unless someone else tells the Court. The prosecutor should not withhold information from the court with a view to using it to support a section 5B application later.

The new information need not relate directly to the offence but may relate to matters such as the defendant's criminal record, or his or her address in relation to the complainant's address.

It is not necessary to use section 5B to ask the magistrates' court to reconsider bail when the defendant is already present at court in answer to bail. In other words, section 5B is not the only provision available to the court to allow it to reconsider bail. The court still has a duty to consider bail every time the defendant appears before it.

Where the CPS has already received a file from the Police, the Police will supply information relevant to such an application to the CPS and suggest that a section 5B application be made. Where the CPS has not yet received a case file from the Police (for example where the defendant has only recently been charged and bailed), the Police will submit the appropriate National File Standard file, together with information supporting a proposed section 5B application.

Where the CPS receives information from a source other than the Police which may justify a section 5B application, the prosecutor should provide details to the Police and request the Police view. Where the CPS has not yet received a file from the Police, the prosecutor should request a file. The prosecutor should consider the following when deciding whether to use section 5B:

• The length of time since the original decision and the bail history since that decision;
• The length of time before the defendant would next appear in Court if no applications were made;
• Whether the original decision would have been different if the new information had been available then (or if the new circumstances had obtained them);
• Whether, even if the original decision would have been different, a different decision is likely to be taken now.

If the prosecutor decides to proceed with a section 5B application, the application must be made in accordance with Criminal Procedure Rules 14.5 and Criminal Procedure Rules 14.6.

The prosecutor must make the application to the magistrates' court which granted bail or in the case of bail granted by the police, the "appropriate" court. The appropriate court is the one appointed by the Custody Officer as the court before which the person granted bail has a duty to appear, or, if no such court has been appointed, the court acting for the area in which the Police Station at which bail was granted is situated.

The application must:

• be in writing;
• the decision that the applicant wants the court to make;
• each offence charged;
• each relevant previous bail decision and the reasons given for each;
• why the court should withdraw bail or impose or vary any conditions;
• what material information has become available since the most recent bail decision;
• propose the terms of any suggested bail condition;
• if an earlier hearing is required, explain why.

The CPS must serve the application on the court officer and the other party not less than two business days before any hearing.

Breach of Conditions of Bail

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 [2004] 1 Cr. App. R. 23).

Section 7(3) Bail Act 1976 confers power upon a police officer to arrest a person if he 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.

Under section 7(4) Bail Act 1976, a person so arrested must be brought as soon as practicable, and in any event within 24 hours of his arrest, before the magistrates court for the area in which he was arrested. The arrested person must be dealt with within that 24-hour period; bringing them before the court is insufficient - R v Culley [2007] EWHC 109 (Admin). Although a contrary view was expressed by the Divisional Court in the case of McElkerney v Highbury Corner Magistrates' Court [2009] EWHC 2621 (Admin), it is submitted that prosecutors should take care to ensure that the court is aware of the 24-hour limit and try and have the case disposed of within that time, or risk the defendant's release.

Under section 7(5) Bail Act 1976, the magistrates' court before which the defendant is brought may remand them in custody or grant bail subject to the same or to different conditions if it is of the opinion that:

• the defendant is not likely to surrender to custody; or
• that the defendant has broken or is likely to break any condition of bail.

The effect of section 7(5) Bail Act 1976 was considered in R v Liverpool City Justices ex p DPP (1993) QB 233, which established five propositions:

• That the arresting officer must state his grounds for believing the defendant had broken or is likely to breach a condition of his bail. This may well involve the giving of "hearsay evidence".
• Where the defendant disputes the ground on which he was arrested, there is no necessity for the giving of evidence on oath or for providing an opportunity to the person arrested, or his legal representatives, to cross-examine witnesses or give evidence. However, there should be some way in which the defendant can respond to the alleged breach.
• The magistrates' court has have no power to adjourn the proceedings and must consider, on the material before them, whether they are able to form one of the opinions set out in section 7(5) Bail Act 1976 and if so, go on to decide whether or not to remand the defendant in custody or on bail on the same or more stringent conditions.
• If the court feels unable to form one of the opinions set out in section 7(5) Bail Act 1976 they must order the person concerned to be released on bail on the same terms as were originally imposed.
• Proceedings under section 7(5) Bail Act 1976 do not preclude a defendant who is remanded in custody from making an application for bail to the Justices, or to a Crown Court or to a Judge, as appropriate.

The presumption in favour of granting bail under section 4 Bail Act 1976 will be subject not only to the exceptions of the right to bail in Part I, Paragraph 2 of Schedule 1 to the Bail Act 1976, but also to the exception in Paragraph 6 of the Schedule.

It should also be noted that:

• The procedures adopted above do not amount to breaches under Article 5 and 6 of the European Convention on Human Rights - R v Havering Magistrates ex parte DPP and R v Wirral Borough Magistrates ex parte Mark McKeown (2001) 2 Cr App R 2 considered these propositions and whether or not there were any and has held that R v Liverpool City Justices ex parte DPP (1993) QB 233 remains good law.
• The issue for the court is whether there has been a breach and, if so, whether the defendant ought to be re-admitted to bail. The words "reasonable excuse" should not be imported into section 7(5) Bail Act 1976, and the breach of conditions was just one factor for the court to take into account when deciding whether to grant bail - R (Vickers) v West London Magistrates' Court [2003] EWHC 1809 (Admin). In practice, Prosecutors should not ask courts to deny a defendant bail simply because they was arrested in pursuance of section 7(5) Bail Act 1976 and courts should not withhold bail simply on that ground alone.
• Where the defendant is arrested for a new offence and for breach of one or more bail conditions, the police must give consideration as to whether the breach of bail as well as the new offence should be placed before the court within 24 hours of the arrest. If this is possible, the suspect should be arrested for breach of bail as well, but must be placed before a magistrates' court within 24 hours, irrespective of the stage at which the investigation for the new offence has reached.
• Where the nature of the investigation of the new offence is such that it is not practicable for the defendant to be placed before the court within 24 hours of an arrest for breach of bail, the police should delay the arrest under section 7(5) Bail Act 1976 and only make the arrest when the enquiries for the new offence have been completed.

Remands into Custody

Length of Remand into Custody

It should be remembered that these provisions should always be viewed as being subject to Custody Time Limits.

In the magistrates' court, a defendant can only remand a person in custody for a maximum of eight days, except where it has previously remanded them in custody and it has a set a date for the next stage of those proceedings. In those circumstances, having heard representations from the defendant's representatives, he can be remanded in custody for a period ending in that date or for a period of 28 days, whichever is the less - section 128A Magistrates Courts Act 1980.

There is no maximum period of remand into custody in the Crown Court, where the judge is able to adjourn cases to the next stage in the proceedings.

Appearance by Live Link

Preliminary hearings, including those considering bail, may be held via live video link and where live link is used, the defendant is deemed to be present - section 52A(2) Criminal Justice Act 2003.

There is no requirement that the defendant be in custody in relation to the offences to which the preliminary hearing relates. As such, prosecutors should consider the savings in time and cost that might result from using the live link where a prisoner serving a sentence in relation to another offence needs to be produced in court. In these circumstances, it is important to liaise with any Defence solicitors, where known.

The court may require an initial hearing to determine whether to make an order for the proceedings to be heard via live link, at which the defendant may be required to attend via live link, and in relation to which he (or those representing them) should be able to make representations - section 52(8) Criminal Justice Act 2003.

Warrants of further detention - pre charge: s. 43 PACE

An arrested person must be charged or released within 24 hours of his arrest or arrival at the police station (section 41 PACE). This can be extended to 36 hours on authorisation of a police superintendent (section 42 PACE). Thereafter, a police officer may apply on oath (supported by an information) to the magistrates' court for that period of detention to be extended where the court is satisfied (section 43(4) PACE) that:

• His detention without charge is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest or to obtain such evidence by questioning them;
• The offence is an indictable one, and;
• The investigation is being conducted diligently and expeditiously.

The application must be made before the 36-hour period has expired and the police may apply for the warrant of further detention to be extended up to a period of no more than 96 hours from the time of arrest or arrival at the police station (section 44 PACE). For the detailed requirements as to the timing of applications, prosecutors should have regard to the provisions of section 43(14) PACE in that it contains:

• The nature of the offence for which the suspect was arrested;
• The general nature of the evidence;
• What enquiries have been made and what further enquiries are proposed;

The reasons for believing that the suspect's continued detention is necessary for the purpose of such further enquiries.

Detention in a police station - post charge: s. 128(7)(8) Magistrates Court Act 1980 (MCA)

Prosecutors may also hear this provision referred to as a "lay down" and it is commonly used where a defendant has been charged for one or more offences and has been remanded in custody by the court for that matter, but the police wish to detain them in police custody for a short period to question them in relation to other offences.

Section 128 (7) MCA states that a magistrates' court having power to remand a defendant in custody may, if the remand is for no more than three days, commit them to be detained at a police station. He may only be detained at a police station if there is a need for them to be so detained for the purposes of enquiries into other offences and he shall be brought back to court as soon as that need ceases (section 128(8)(a)(b) MCA). His detention will be kept under continuous review, in accordance with PACE, whilst in police detention.

In the case of a person aged less than 18 years, the maximum period of the "lay down" is 24 hours - section 91(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

Prosecutors need to approach this application by firstly satisfying themselves that a remand in custody on the offence charged is justified, having regard to whether one or more of the exceptions to bail are made out. Only at this point, will they have to address the necessity for detaining them in the police station for further enquiries to be made.

If so satisfied, the application for a remand in custody will be made by way of a two-stage application - for the remand into custody, and, if granted to police custody. Many defendants will be keen to go straight to prison and their advocates may argue that it is open to the police to bail the defendant to be produced at the police station, once the further enquiries are complete.

As such, it is vital that prosecutors are provided with sufficient information to justify the necessity for this type of detention - in addition to the remand file.

Detention in police custody for drug offenders: s. 152 Criminal Justice Act 1988

Where a defendant is brought before a magistrates' court charged with possession of a controlled drug or a drug trafficking offence, the Magistrates have the power to remand the defendant into the custody of a police officer or customs officer for a period not exceeding 192 hours, if the court considers it appropriate to do so.

In practice, this application will only be made in circumstances where the police are in a position to charge the offender and it is anticipated the maximum period of 96 hours under PACE will not be sufficient for the defendant to pass swallowed or concealed drugs from his body.

The prosecutor will first consider and apply for a remand in custody and, thereafter ask the court to remand initially for up to 192 hours into police custody. The police will be expected to provide evidence to support their assertion that the defendant has concealed drugs in his body and this will usually be in the form of an X-ray or other medical opinion, or observations of his conduct both before and after arrest.

Technical Bail

Prosecutors are instructed not to consent to technical bail at magistrates' court or Crown Court hearings.

Technical bail is where bail is granted to a defendant in circumstances where there are substantial grounds for believing that a remand into custody is justified but the defendant is either serving a custodial sentence, or is remanded in custody for other matters before the same or other courts. Unconditional bail under these circumstances is granted on a technical basis, thereby avoiding the need to bring the defendant back to court unnecessarily for interim remand hearings. It also means that only one set of custody time limits needs to be monitored.

The risks inherent in agreeing to technical bail are:

• If the defendant is released from his sentence or custodial remand before the conclusion of the proceedings for which technical bail is granted, a person who is likely to re-offend, abscond or present a risk to witnesses is released into the community without even the safeguards offered by conditions of bail being in place.
• The risks are heightened in cases where the defendant is subject to recall to prison because the recall process can be lengthy, and it may not always be clear whether the defendant has been recalled for his original offence(s) when technical bail is being considered for the later matters. Furthermore, a decision to recall may be successfully challenged before the conclusion of the criminal proceedings.

Public safety and public confidence in the criminal justice system must not be compromised by administrative convenience. While the decision to grant bail is ultimately for the court, prosecutors should be prepared to object to technical bail where satisfied that one or more grounds for withholding bail has been made out.

In objecting to bail, prosecutors should point out to the court that:

• A defendant need not be granted bail if he is in custody in pursuance of the sentence of a court or of any authority acting under any of the Services Acts (see Schedule 1 Part I paragraph 4, Part IA paragraph 6 and Part II paragraph 4 Bail Act 1976);
• The use of remands by prisoner to court video link (PCVL) will avoid the need to transport the defendant;
• There is no guarantee that defendants who are remanded in custody on other matters or who are serving prisoners would not be released before the conclusion of the instant proceedings.

In a case where he is satisfied that there are no grounds for opposing bail, a prosecutor can still invite the court to impose conditions to take effect, should the defendant be released from custody.

The prosecutor's reasons for adopting this course of action should be recorded fully on the file.

Given the importance of this advice to maintaining public safety, the Justices' Clerks' Society and the office of the Senior Presiding Judge has been made aware of this advice.

Youth Bail

The Bail Act 1976 applies to youth offenders and there is a presumption that the defendant has a right to bail, save for exceptions set out in Schedule 1. Section 91 LASPO 2012 applies where a court has decided it cannot release the child concerned on bail under the Bail Act 1976 in criminal or extradition proceedings.

In dealing with a person aged under 18 years, prosecutors are reminded that they should first satisfy themselves that the exceptions to the right to bail are made out (see Annex 4, Annex 5 and Annex 6) and whether conditions of bail will allay any concerns about bail.

In cases in which bail (with or without conditions) is not appropriate, the prosecutor should consider seeking a remand into local authority accommodation (section 91(3) LASPO 2012). A remand into youth detention accommodation should only be sought where the conditions set out in either section 98 or 99 LASPO 2012 are met (section 91(4)(a) LASPO 2012).

When bail is refused, courts should remand the child in local authority accommodation, as defined in section 92 LASPO 2012, unless the risk they pose cannot be managed safely in the community. This requires the court to be satisfied that there is no alternative mechanism for adequately dealing with the risk presented by the child in the community (sections 98(4) or 99(7) LASPO 2012 (as amended)).

10 - 11 Years Old

Children aged 10 and 11 may be remanded on unconditional bail, conditional bail, bail supervision and support or bail Intensive Supervision and Surveillance Programme (ISSP).

Where a court remands on bail a 10 or 11-year-old who is either charged with or has been convicted of a serious offence or, in the opinion of the court, is a persistent offender on bail the court may order a local authority to make an oral or written report specifying where the child is likely to be placed or maintained if he is remanded into local authority accommodation (section 23B Children and Young Persons Act 1969).

12 - 17 Years Old

Children aged 12 to 17 may be remanded on unconditional bail, conditional bail, conditional bail with electronic monitoring, bail supervision and support, bail supervision and support with electronic monitoring, bail Intensive Support and Surveillance Programme (ISSP), with voice verification and/or with electronic monitoring.

An electronic monitoring requirement may only be imposed on a youth aged 12 to 17 inclusive if the following conditions are satisfied:

• the child or young person has been charged with or convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more; or
• is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings, amount, or would amount if convicted of the offences with which he is charged, to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation; and
• the court has been notified by the Secretary of State that electronic monitoring arrangements are available in the area and is satisfied that the necessary provision can be made under those arrangements; and
• the youth offender team has informed the court that the electronic monitoring requirement is suitable for that child or young person (section 3AA Bail Act 1976).

Children 17 years old who are remanded will be treated in the same way as younger children. They may therefore be remanded to local authority accommodation. Similarly, children aged 12 – 17 can be remanded to youth detention accommodation if they meet both sets of conditions outlined in LASPO 2012. Every child remanded to youth detention accommodation is to be treated as “looked after” by their designated local authority as defined in Part 3 Children Act 1989.

Youth Remands

The statutory tests within the section 157 Police, Crime, Sentencing and Courts Act 2022 (PCSC 2022) amended section 91 LASPO 2012. From this date the court is required consider the interests and welfare of the child before remanding them into youth detention accommodation.

There is a specific obligation to consider a bail application, even if the court has refused bail twice and there is no change of circumstances nor any considerations which were not before the court when the youth was last remanded (R (on the application of B) v Brent Youth Court [2010] EWHC 1893 Admin).

Prosecutors should be mindful of their corresponding duty to have regard to the interests of the youth and the principal aim of the youth justice system which is to prevent offending (section 37 Crime and Disorder Act 1998), when considering representations in respect of bail.

The best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies: Article 3 United Nations Convention on the Rights of the Child 1989 (UNCRC).

Courts have a statutory obligation to record their reasons for imposing custodial remand and this provision requires the courts to indicate that they have considered the welfare of the child in their decision and will also reinforce the existing presumption of non-custodial remand by ensuring the courts consider remand to Local Authority Accommodation as a first step (sections 102(4) and 102(5) LASPO 2012).

Remands to Local Authority Accommodation

A remand to local authority accommodation is a remand in custody and custody time limits will apply (Section 22(11)(b) of the Prosecution of Offences Act 1985).

The remand is for a maximum of eight days as the remand in absence procedure does not apply to youth offenders. If the remand is after conviction, then the maximum period is three weeks.

The Court shall designate the local authority that is to receive the youth offender (section 92(2) LASPO 2012).

Local Authority Remand with Conditions

The Court may impose any condition on the local authority remand that could be imposed under section 3(6) Bail Act 1976 and section 93(1) LASPO 2012.

An electronic monitoring requirement may only be imposed if the criteria in sections 94 (2) – (6) LASPO 2012 are satisfied, namely:

• the child is at least 12 years old;
• one or more of the offences for which the child is remanded is imprisonable;
• one or more of the offences for which the child is
  • remanded is a violent or sexual offence (as defined in Parts 1 and 2 of Schedule 15 Criminal Justice Act 2003) or
  • punishable in the case of an adult with imprisonment for a term of 14 years or more or taken together with any other imprisonable offences of which the child has been convicted in any proceedings,
  • amounts (or would, if the child is convicted of the offence(s) for which they are remanded) to a recent history of committing imprisonable offences while on bail or subject to a custodial remand;
• electronic monitoring is available and the youth offending team have informed the court that electronic monitoring is suitable for the child.

The court may also impose requirements on the authority itself for securing compliance with any conditions imposed on the child or stipulating that the child shall not be placed with a named person (section 93(3) LASPO 2012).

The authority itself may ask the Court to impose conditions on a remand to local authority accommodation (section 93(3) LASPO 2012) and both the local authority and the child can apply to the court to vary or revoke any conditions previously imposed (section 93(6) LASPO 2012).

The court must consult the designated local authority before imposing conditions on the child or the local authority (section 93(4) LASPO 2012).

"Consultation" with the local authority is defined as such consultation (if any) as is reasonably practicable in all the circumstances of the case (section 93(9) LASPO 2012).

Prosecutors should know something of the local authority's arrangements for accommodation of youth offenders on remand. In all applications, it will be advisable to talk to the representative from the youth offending team before addressing the Court on the need for any conditions to be imposed on the remand, or for a stipulation that the defendant should not live with a named person.

Remands to Youth Detention Accommodation

Youths aged 10 and 11 can only be remanded to local authority accommodation.

The Court may remand a youth aged between 12 and 17 to youth detention accommodation, rather than local authority accommodation if the youth satisfies either the first or second set of conditions in sections 98 and 99 LASPO 2012. Although the two sets of conditions are similar in many respects, the differences lie in the “history condition” that applies only in section 99 LASPO 2012; and the “offence condition” which for section 99 LASPO 2012 stipulates an imprisonable offence, whilst section 98 LASPO 2012 requires a violent, sexual or terrorism offence or one carrying 14 years imprisonment. These provisions are set out in Annex Seven: Youth Remand Provisions.

Prosecutors are advised to consult the Youth Offending Team to explain the objections to bail and the reasons for seeking a remand to youth detention accommodation and to ascertain whether they can offer a suitable alternative such as ISSP or bail support. You should only make an application for a remand to youth detention accommodation when you have considered all of the alternatives and decided that they would be inadequate to protect the public from serious harm or to prevent the commission of further offences. Prosecutors should not use the mere existence of an offence or history condition to make an application for a remand to youth detention accommodation.

The court no longer has a power to remand a 15 or 16-year-old boy to secure accommodation rather than a young offenders' institution. All children remanded to youth detention accommodation will be placed in a secure children's home, secure training centre or young offenders' institution.

Prosecutors should advise the defence solicitor, the Court and the youth offender team and of any information on the CPS file that indicates that a youth remanded to youth detention accommodation has any physical or emotional maturity issues or a propensity to self- harm to enable the child to be placed appropriately.

Secure Accommodation Orders

If a youth offender is remanded to local authority accommodation, the authority can separately apply to the Court for a Secure Accommodation Order. The application is made under section 25 Children Act 1989, where the remand has been made by the Youth Court or magistrates' court, the authority must apply to that Court and not to the Family Proceedings Court.

The maximum period for which a Court can make a Secure Accommodation Order on a youth offender who has been remanded to local authority accommodation is the period of the remand. If the authority intends to make this application, then it may well be advisable for Prosecutors to delay any application for remand to local authority accommodation until the local authority application has been heard. If the application is successful you can consider seeking a remand on bail with a condition of residence where directed by the local authority. In cases where the offender is likely to be remanded for a considerable period of time, it will obviate the need for the offender to be produced at court every seven days.

If the offender is not already in care, then the remand must be dealt with first and a remand to local authority accommodation granted before the local authority has power to seek a Secure Accommodation Order. Time that is spent remanded or committed in custody (including Police detention, or in secure accommodation), is deducted from the final sentence. Time spent remanded or committed to local authority accommodation does not count against the final sentence.

Local Remands

A custody officer, after charge, is under a duty to ensure that an arrested youth is moved to local authority accommodation, unless it is certified in the case of:

• a child who is aged 12 to 17 inclusive, that no secure accommodation is available and that keeping them in other local authority accommodation would not be adequate to protect the public from serious harm from them; or
• any child that, for the reasons specified on the certificate, it is impracticable to make the transfer (section 38(6) PACE).

Although the sub-section uses the word "impracticable" in relation to those under 12 years, the construction of the statutory provision makes clear that the type of accommodation in which the local authority propose to place the youth is not a factor which the custody officer may take into account in considering whether the transfer is acceptable. As the detention of children under 12 in youth detention accommodation would not be available to the Court, other than at the instigation of the local authority itself under section 25 Children Act 1989 it would be improper to try and use section 38(6) PACE to achieve it.

The 2017 Concordant on children in custody contains guidance for police forces and local authorities in England on their responsibilities towards children in custody. See the legal guidance on Youth Offenders and Concordat on children in custody - statutory guidance.

Defendants with Mental Health Conditions and Disorders

A defendant may have been detained in hospital under the Mental Health Act 1983 as a civil patient prior to charge. The court has no power to grant bail on condition that the defendant resides at the hospital and must remand the defendant in custody. However, the Secretary of State for Justice is able to consider a transfer under section 48 Mental Health Act 1983 and facilitate a remand straight to hospital from the magistrates' court where:

• He is satisfied by reports from two registered medical practitioners that the defendant is suffering from a mental disorder of a nature and degree that makes hospital treatment appropriate and urgent and that such treatment is available for the defendant, and;
• That such treatment is expedient in the public interest and in all of the circumstances of the case.

Where the statutory criteria are satisfied, early liaison with the Mental Health Casework Section (MHCS) of HM Prisons and Probation Service is essential. Contact details for the MCHS (including out of hours contact numbers is available at https://www.gov.uk/guidance/noms-mental-health-casework-section-contact-list. Prosecutors should contact the MCHS in advance of the first appearance to agree the information needed which will include:

• Details of the alleged offence, including a case summary and list of antecedents;
• Reports from at least two registered medical practitioners
• Details of the hospital where the defendant is being treated so that the MHCS can send the hospital the appropriate form to complete and ensure that they understand the process.

The MHCS will decide whether the hospital offers a sufficient level of security given the nature of the charges and antecedent history and any risk assessment. The fact that the defendant is already being treated at that hospital will be taken into account.

The transfer will be affected by a warrant directing the defendant's transfer to hospital. The section 48 warrant cannot be issued until the court has remanded the defendant in custody. Therefore the court remand warrant must be faxed or emailed to MHCS as soon as it is issued, and MHCS will send back the section 48 warrant. Warrants cannot be issued at the weekends or on Bank Holidays.

section 48 can be remanded in his absence without the need for them to appear back before the court, provided that he shall not be remanded in his absence, unless he has appeared before the court within the previous six months.

Appeals in relation to Grant of Bail - by the Prosecutor

From the Magistrates Court

Where a magistrates' court grants bail to a person who is charged with, or convicted of, an offence punishable by imprisonment, the prosecution may appeal to a judge of the Crown Court against the granting of bail under section 1 Bail (Amendment) Act 1993. “Charged or convicted” means that bail can be appealed even when a convicted defendant’s case is adjourned for sentence.

In deciding whether to seek a remand in such a case, the prosecutor should also consider whether an appeal would be appropriate in the event that the Court decides to grant bail. The decision and reasons for it must be clearly endorsed on the hearing record.

Factors to Consider

In considering whether an appeal is appropriate, the key factor to consider is the level of risk posed to a victim, group of victims or the public at large, or any other public significant public interest factor in particular reflecting the seriousness (assessed by culpability and harm) of the case as a whole.

The nature and seriousness of the offence which the defendant faces is relevant if it illustrates the risk created by granting bail. Examples might be extreme cases of personal violence such as murder, rape, robbery or aggravated burglary, particularly if it is alleged that weapons have been used in offences of violence or during the commission of sexual offences.

A serious risk of harm to public safety and property might be demonstrated in an offence of arson with intent to endanger life or being reckless as to whether life is endangered, terrorist offences or riot. Other offences such as dangerous driving may also present a serious risk to the public at large.

The risk to the individual victim or victims may be shown to be greater where there is:

• A record which discloses previous convictions, particularly of a similar kind against the same victim or victims with similar characteristics;
• Evidence of violence or threats of violence to the victim or his or her family, or;
• Evidence of undue influence over the victim, for example where there are alleged sexual offences against young people or children.

A strong indication that the defendant may abscond may be a reason to appeal in circumstances where the defendant has no right to remain in the jurisdiction or has substantial assets or interests abroad. On the other hand the right of appeal should not be used simply because the defendant has no fixed address or settled way of life, particularly where this may be coupled with mental health problems (unless accompanied by genuine indications of danger to the public).

This guidance is not intended to be exhaustive and each case will need to be decided on its merits after consideration of any representations made to the court and any other information which may become available.

Where a prosecutor has decided to exercise a right of appeal, authorisation should be sought from a legal manager at level E before the appeal is heard in the Crown Court. Associate Prosecutors who do not have instructions from a prosecutor to appeal bail if granted (whether through instructions on the MG3 or otherwise) should seek instructions before serving written notice of appeal from a lawyer manager but may give oral notice of appeal before seeking instructions.

Procedure

1. Oral notice must be given to the court at the conclusion of the bail hearing and before the defendant is released - section 1(4) Bail (Amendment) Act 1993. The giving of an oral notice after a short delay of five minutes after the Magistrates had withdrawn and before the defendant was released was held to satisfy section 1(4) - R v Isleworth CC ex p. Clarke [1998] 1 Cr. App. R. 257. The defendant is remanded in custody and should remain in the cells, pending the giving of the notice.
2. Prosecutors should request from the magistrates' court a "notice of a decision about bail" under Criminal Procedure Rule 14.4 (2) (b) when bail is granted and oral notice of appeal has been given. The court must provide such a "notice" to the prosecutor if it is requested. The court officer must also arrange for "a note or other record" to be made of the court's decision to grant bail where the prosecutor opposed bail under 4(1) and the court officer must send a copy of that note or record to the Crown Court with the appeal notice (CrimPR14.9(6)). The "notice of a decision about bail" provided to the prosecutor under CrimPR14.4 (2) (b) may be a different document from the "note or other record" provided by the magistrates' court to the Crown Court under CrimPR14.9(6).
3. Written Notice of Appeal must be served on the Clerk to the Magistrates’ Court and the person concerned within two hours of the conclusion of the proceedings in which oral Notice of Appeal was given (section 1(5) Bail (Amendment) Act 1993). Service on a party’s legal representative is not service on that party, unless the court directs otherwise: Criminal Procedure Rule 4.10(f). The prosecutor may invite the court to direct otherwise, and that service is effected by handing the notice to the defendant’s legal representative. f the notice is not served, the appeal is deemed disposed of and the defendant is released. The Criminal Procedure Rules do not prescribe a form of notice but a draft is available to prosecutors on CMS and the intranet. If necessary, the defendant should be produced in court within the two-hour time limit in order to effect personal service of the written notice.
4. The appeal must be heard within 48 hours of the end of the day on which the bail application was heard, excluding weekends and public holidays.
5. Under CrimPR 14.9 (9) a prosecutor may abandon the appeal at any time before the hearing begins by serving notice on the Magistrates Court, the Crown Court and the Defence.
6. The appeal hearing is a complete re-hearing of the application at the Magistrates Court with the judge at liberty to remand the defendant in custody, or grant bail on any conditions they deems appropriate.
7. In the event of a successful appeal to the Crown Court, the Judge should be invited to remand the defendant, where they are subject to the magistrates' court's jurisdiction, to appear before the Justices on a date which must be no more than eight clear days from the date of his last appearance before them.

Youths

The Bail (Amendment) Act 1993 applies to youth offenders charged with, or convicted of, offences punishable (in case of an adult) with imprisonment and in respect of whom the prosecutor has made representations that they should be remanded to local authority accommodation, or youth detention accommodation under the provisions of sections 98 or 99 LASPO 2012.

An appeal against the grant of bail (with or without conditions) to a youth will result in a remand to local authority accommodation pending the determination of the appeal. The court will have to designate a relevant local authority under s.92(3) LASPO 2012 and may also need to consider imposing conditions on any such remand (under s.93 LASPO 2012) pending the hearing of any appeal. Prosecutors and managers will therefore need to give careful consideration as to the merits of any appeal against the grant of bail and whether any conditions should be sought in addition to a remand and prior to the hearing of an appeal.

In addition to the authorisation referred to above, the decision to appeal the granting of bail should be taken or confirmed by a Youth Justice Specialist (YJS) and the Area Youth Justice Lead (AYJL) should be notified of the result of the appeal.

From the Crown Court

Where a Prosecutor has applied for a defendant to be remanded in custody and the offence in relation to which the remand was sought was an imprisonable one, the prosecutor has a right of appeal to the High Court, under section 1(1B) Bail (Amendment) Act 1993. Authority to appeal to the High Court has to come at the level of Deputy Chief Crown Prosecutor.

The right of appeal to the High Court under this section does not enable a prosecutor to appeal a decision by the Crown Court to uphold the decision of Magistrates to grant bail - section 1(1C) Bail (Amendment) Act 1993.

The provisions on factors to consider, authorisation and procedure relating to an appeal from the Crown Court match those on appeal from the magistrates' court, save that prosecutors should note that:

1. RSC Order 79, Rule 9(15) states that proceedings on appeal to the High Court can be commenced by lodging the written notice with that court; but,
2. For precise information as to what documents to lodge and where, prosecutors should have regard to Practice Direction 4, which supplements that rule.

Habeas Corpus/Judicial Review

The High Court no longer has jurisdiction to entertain an application in relation to bail.

The High Court jurisdiction in respect of habeas corpus is unaffected. In Sumpter v Director of Public Prosecutions (6th July 2004, unreported), Treacy J. stated:

"The preservation of the Habeas Corpus remedy in these circumstances is not to be regarded as a substitute route for the now abolished inherent right of the High Court to grant bail after a decision by the Crown Court…The intention of Parliament plainly was to achieve a degree of finality in relation to Bail Act applications and decision making and the route which has been adopted today is not one which the court wishes to encourage."

Prosecutors should be aware however that the possibility of a judicial review of a decision of bail still exists despite these changes, but authority indicates that this should be used sparingly - see R (ex parte R) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin).

Bail appeals by the Defence

Under section 81 Senior Courts Act 1981, a defendant may appeal a decision of a Magistrates Court to withhold bail, but only where they have obtained a certificate from the Magistrates (section 5(6A) Bail Act 1976) that they have heard full argument from the defendant before refusing his application.

Criminal Procedure Rule 14.8 sets out what the Defence must include in its Notice of Application and how the Crown must respond. The CPS should note that the importance of seeking the views of the police and any identified victims as to any proposed conditions and should ensure that these applications are brought to the attention of the police as soon as possible. Where necessary, prosecutors should be proactive in seeking more time for a response to be received - see CrimPR 14.8 (6) and (7).

Failure to Surrender

It is an offence for a suspect released on bail in criminal proceedings, to fail without reasonable cause to surrender to custody - section 6(1) Bail Act 1976.

It is an offence for a suspect released on bail in criminal proceedings, who having reasonable cause for failing to surrender at the appointed place and time, fails to surrender at that place and time as soon as is reasonably practicable thereafter - section 6(2) Bail Act 1976.

It is punishable as a summary only offence (maximum penalty 3 months and/or a level 5 fine), or as a contempt of court. If sentenced in the Crown Court (whether dealt with as a contempt of court or committed to the Crown Court for sentencing) the maximum penalty is 12 months' imprisonment and/or fine.

Commencing a prosecution

Where bail is granted by the police and the defendant fails to surrender, the police may charge them as long as the charge is laid within six months of them failing to surrender, or three months of them surrendering to custody, being arrested or being brought before the court for the offence for which he is bailed, whichever is sooner – sections 6(11) - (14) Bail Act 1976.

Where a defendant is bailed by the police and fails to surrender at the first hearing, the prosecutor should make an oral application for an information to be laid in relation to both the offence under section 6(1) and 6(2) Bail Act 1976, as it cannot be anticipated at that stage when the defendant will surrender and whether he will advance a reasonable cause. Where the defendant is brought before the court, having not been charged by the police and with no information having been laid previously, the prosecutor may ask for an information to be laid at this stage, subject to the time limits as set out above.

Where a defendant has been bailed by the court and fails to surrender, the court may try them for that offence at any point after he has been brought before the court for that offence, irrespective of the length of time since he failed to surrender - section 6(10) Bail Act 1976.

When a defendant fails to appear at Court, the prosecutors should generally apply to the Court for a warrant without bail. In exceptional circumstances, they may use their discretion as to whether a warrant backed for bail may be appropriate.

Evidential Considerations

Prosecutors need to consider whether:

The defendant was bailed in criminal proceedings

There is no need to call formal evidence unless contesting the defence of reasonable cause. The Court's record of the grant of bail, or the charge sheet, if Police bail was granted, giving details of the time and date the defendant was due to surrender, will be sufficient.

There was a failure to surrender

Whether or not the defendant has failed to surrender to court bail will depend on the arrangements in the particular court to which the defendant is to surrender. The position may differ between the magistrates' court and the Crown Court.

Magistrates Court - In DPP v Richards (1989) 88 Cr. App. R. 87 the defendant was on bail to appear at the magistrates' court. The court displayed a notice which required all persons due to appear in court to report to the enquiry counter. The defendant did report and then complied with the instructions to wait in the concourse before becoming tired of waiting and leaving the building. Following conviction for failing to surrender the defendant appealed to the Crown Court, Glidewell LJ stated:

"... what precisely constitutes the person or body to whom a person on bail is to surrender depends upon the procedure followed at the particular court and the directions given in accordance with that procedure to the person who is coming to surrender ... If having done so the person at the Inquiry office said: 'Go to the cells and surrender to a prison officer' that would have been the surrender. If the Inquiry officer says: 'Go and sit in the concourse until your case is called,' then the court procedure envisages that being the surrender to the court."

Accordingly, in the magistrates' court, what constitutes surrender may vary according to the arrangements which are made for accepting surrender at any particular court. In this instance, by surrendering to the enquiry desk, the defendant could not be said to have failed to surrender.

Even if the circumstances do not amount to a Bail Act offence, the court may still issue a warrant for the defendant's arrest (section 7(2) Bail Act 1976).

In R v Evans (Scott Lennon) [2011] EWCA Crim 2842, the defendant arrived at the Crown Court where he informed his advocate of his arrival. He left before his case was called and was convicted of failing to surrender.

The Court of Appeal did not agree that reporting to the usher amounted to surrendering.

Mere arrival at the Crown Court building does not constitute a surrender, neither did reporting to an advocate. Surrender has to be accomplished personally by the defendant.

"... in the absence of special arrangements either particular to the court or particular to the individual case, surrender to the Crown Court is accomplished when the defendant presents themselves to the custody officers by entering the dock or where a hearing before the judge commences at which he is formally identified as present. Secondly, if there has been no previous surrender, as ordinarily there will have been it is also accomplished by arraignment. Thirdly, the position in the magistrates' court may be the same, but may easily differ as explained in DPP v Richards."

Reasonable Cause (excuse)

Under section 6(3) Bail Act 1976, it is for the defendant to prove that he had a reasonable cause for failing to surrender. Error or forgetfulness is unlikely ever to amount to a reasonable excuse, but may be relevant mitigation for the court to consider (Laidlaw v Atkinson The Times (02/08/1986)).

Issuing of Medical Certificates

This guidance clarifies the roles and responsibilities of medical practitioners when issuing medical certificates in criminal proceedings.

Doctors will be aware that medical notes/certificates are normally submitted by defendants in criminal proceedings as justification for not answering bail; they may also be submitted by witnesses who are due to give evidence and jurors.

If a medical certificate is accepted by the court, this will result in cases (including contested hearings and trials) having to be adjourned rather than the court issuing a warrant for the defendant's arrest without bail. Medical certificates will also provide the defendant with sufficient evidence to defend a charge of failure to surrender to bail.

However, a court is not absolutely bound by a medical certificate. The medical practitioner providing the certificate may be required by the court to give evidence. Alternatively the court may exercise its discretion to disregard a certificate, which it finds unsatisfactory - R v Ealing Magistrates Court Ex p. Burgess (2001) 165 J.P. 82.

Circumstances where a court may find a medical certificate to be unsatisfactory include:

1. Where the certificate indicates that the defendant is unfit to work (rather than to attend court);
2. Where the nature of the defendant's ailment (e.g., a broken arm) does not appear to be capable of preventing his attendance at court;
3. Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic timescale.

It therefore follows that as a minimum standard a medical certificate should set out:

1. The date on which the medical practitioner examined the defendant;
2. The exact nature of the defendant's ailment;
3. If it is not self-evident, why the ailment prevents the defendant from attending court;
4. An indication as to when the defendant is likely to be able to attend court, or a date when the current certificate expires.

Medical practitioners should be aware that when issuing a certificate to a defendant in criminal proceedings they make themselves liable to being summonsed to court to give evidence about the content of the certificate, and may be asked to justify their statements.

This guidance on the issuing of medical certificates, which was originally agreed with the British Medical Association (BMA) after a period of consultation, is now Criminal Practice Direction CPD1 General Matter 5C Issue of Medical Certificates.

Public Interest Considerations

A prosecution will normally be in the public interest where a defendant has deliberately failed to attend with no reasonable cause unless they are able to put forward substantial mitigating circumstances.

Where a defendant has surrendered to bail at court later than the appointed time, consideration ought to be given to the following questions in deciding whether or not it is in the public interest to proceed with an offence of failing to surrender:

• Has the defendant breached his bail before, in this case or in the past?
• Has there been any inconvenience to the court generally?
• If late on the date for trial, whether any witnesses have been inconvenienced;
• Has any reason offered by the defendant for his late appearance; and
• Has the defendant arrived at court at a time after a warrant for his arrest has been issued?

Procedure

Where the court is looking to proceedings for failure to surrender (separate to consideration as to whether bail should be revoked or amended), it should consider the content of Criminal Practice Direction (Custody and Bail) [2013] 1 W.L.R 3164, the main requirements of which are:

• These offences should be dealt with as soon as practicable, and where possible, at the first hearing after arrest, as its outcome will be relevant to the consideration of bail.
• Proceedings for failing to surrender ought not to be adjourned, even the proceedings for the offence that led to the grant of bail are adjourned. If an application to adjourn is made, the court will need to consider all of the circumstances including likely length of proceedings and the penalty that might be imposed for failing to surrender
• Even if the defendant fails to surrender to court bail, it is the prosecutor who conducts proceedings.
• Bail should be reconsidered in the light of the failing to surrender
• A separate penalty should be considered for the failing to surrender

The court should give reasons in open court if it decides not deal with the Bail Act offence at the earliest opportunity.

If proceedings are sent to the Crown Court, then, the defendant can be committed for sentence to the Crown Court, but only if convicted in the magistrates' court - section 6(6) Bail Act 1976.

If the defendant is sentenced for the Bail Act offence at the same time as for the substantive offences, then any term of imprisonment for failure to surrender should run consecutively to any other term of custody.

Bail Applications involving the Official Solicitor

The Official Solicitor to the Supreme Court acts for defendants in custody who wish to apply for bail but are unable to do so through lack of means to instruct a solicitor - (RSC, Order 79 r 9).

The procedure is that the defendant completes the appropriate Home Office form and the Prison or Remand Centre should send the form to the Official Solicitor and a copy, for information, to the local Crown Court Centre. At the same time the Prison or Remand Centre sends a request for a report in the form of a standard letter and questionnaire direct to the Police Station dealing with the defendant's case. The questionnaire requests details of any objections to bail.

In the light of section 15 (3) Prosecution of Offences Act 1985, it has been decided (with the concurrence of the Official Solicitor) that responsibility for the content of the completed form should rest with the Crown Prosecution Service rather than the Police.

The questionnaire should be properly completed by a Prosecutor and returned to the office of the Official Solicitor. Thereafter the Official Solicitor will deal with the CPS Unit Office.

The Official Solicitor's address is:

Official Solicitor and Public Trustee Victory House 30-34 Kingsway London WC2B 6EX

Email [email protected]

File Endorsements

It is vital that grounds for objecting to bail and the reasons for court decisions are accurately recorded by both the Crown and the Court. This information should be recorded by the prosecutor on the Prosecutor App or the electronic Hearing Record Sheet (HRS).

Prosecutors, whether reviewing a case or appearing as advocates, should ensure that the following information is recorded:

• The bail or custody representations, including any proposed conditions;
• The results of any discussions with the Police concerning bail;
• Full reasons for the bail or custody representations referring to the relevant provisions of the Act where conditional bail or a remand in custody is suggested;
• Recommendations, applications and decisions resulting from considering the provisions of the Bail (Amendment) Act 1993;
• A full note of the Court’s decision and the grounds for the decision;
• Where appropriate, the oral notice and the time it was given in relation to an appeal under the Bail (Amendment) Act 1993; and
• Any relevant information which would not be readily apparent from the papers on the file.

Given that bail can be re-visited at various stages of a case (including appeals by the prosecution against the granting of bail), it is important that the Crown's objections to bail and the Court's decision (including which grounds if any it upholds) are clearly noted by all parties and the Court.

Annexes

Annex 1 - Adult Defendant - Indictable or Either Way Offence

The Magistrates' Court - Simple Bail Structure - Card 1 - Adult Defendant: Indictable Only or Either-Way Imprisonable Offence can be downloaded here.

Annex 2 - Adult Defendant - Summary Imprisonable Offence

The Magistrates' Court - Simple Bail Structure - Card 2 - Adult Defendant: Summary Imprisonable Offence can be downloaded here.

Annex 3 - Adult Defendant - Non-Imprisonable Offence

The Magistrates' Court - Simple Bail Structure - Card 3 - Adult Defendant: Non-Imprisonable Offence can be downloaded here.

Annex 4 - Youth Defendant - Indictable Only or Either Way Offence

The Magistrates' Court - Simple Bail Structure - Card 4 - Youth Defendant: Indictable Only or Either-Way Imprisonable Offence can be downloaded here.

Annex 5 - Youth Defendant - Summary Imprisonable Offence

The Magistrates' Court - Simple Bail Structure - Card 5 - Youth Defendant: Summary Imprisonable Offence can be downloaded here.

Annex 6 - Youth Defendant - Non-Imprisonable Offence

The Magistrates' Court - Simple Bail Structure - Card 6 - Youth Defendant: Non-Imprisonable Offence can be downloaded here.

Annex 7 - Youth Defendant - Remand Provisions

The Magistrates' Court - Simple Bail Structure - Card 7 - Youth Defendant: Remand Provisions can be downloaded here.

Annex 8

Pre-charge Police Bail for arrests between 3 April 2017 and 28 October 2022

Introduction

Pre-charge police bail is governed by provisions in the Police and Criminal Evidence Act 1984 (“PACE”).

The PACE provisions as to pre-charge bail changed on 3 April 2017 as a result of amendments made by the Policing and Crime 2017; and then again on 28 October 2022 as a result of amendments made by Section 45 of the Police, Crime Sentencing and Courts Act 2022 (“PCSCA 2022”). The 2022 provisions apply to pre-charge bail for those arrested for an offence on or after 28 October 2022 (s.45(3) PCSCA). Those arrested before that date but after 3 April 2017 are subject to the previous provisions of PACE and this Annex deals with those provisions.

The Policing and Crime Act 2017 amendments to PACE (in force from 3 April 2017) are complex but most of the changes are to be found in ss.47ZA - 47ZM and s.50A PACE.

PACE sets out certain restrictions and time limits on most pre-charge bail (with or without conditions). Pre-charge bail can only be used where necessary and proportionate.

Pre-charge bail can only be used where necessary and proportionate. Standard cases have an initial bail period of 28 days (authorised by an Inspector); an extension to three months (authorised by a Superintendent) with extensions beyond three months requiring an application to the court.

There are a number of exceptions. The most notable exception being for suspects bailed for a charging decision from the CPS under s.37(7)(a) PACE. The exceptions are dealt with below.

In cases where either bail is not necessary and proportionate, or the time limit has expired suspects can be released without bail while an investigation continues. The Policing and Crime Act does not set time limits for these cases.

Pre-charge bail – reasons for bail

The impact of the amendments to PACE depends on the reason for the grant of pre-charge police bail. The amendments do not affect post-charge police bail (bail for court) under s.38 PACE.

Release on bail by the police for a charging decision by the CPS under s.37(7)(a) PACE (or a further release following an arrest for breach of bail by a person who has been bailed for a CPS charging decision under s.37C(2)(b)) is not subject to the time limits and restrictions introduced by the Policing and Crime Act 2017.

Release by the police on pre-charge bail for other reasons is subject to the pre-release conditions contained in s.50A of PACE and the time limits and processes contained in s.47ZA - s.47ZM PACE. They apply to conditional and unconditional bail including bail for further investigation, and bail whilst the police make a charging decision.

The conditions, time limits and process that apply to police bail for further investigation under s.37(2)(b) PACE will lead to the release of some suspects without bail while an investigation continues. The pre-release conditions in s50A and the time limits and processes in s.47ZA - ZM do not apply to releases without bail.

Cases submitted to the CPS by the police for early investigative advice will involve suspects who are not on bail and suspects who are on bail and subject to the time limits and processes set out in s.47ZA-47ZM. The submission of a case to the CPS for early investigative advice does not suspend the bail clock and the relevant bail period.

There will be cases where the police bail a suspect for further investigation under s.37(2) PACE and then having completed their investigations submit the case to the CPS for a charging decision having concluded there is sufficient evidence to provide a realistic prospect of conviction. S.47ZL(2)(b) PACE provides that the applicable bail period is suspended when the case is referred to the CPS for a charging decision (see the section The Bail Clock (stopped for a CPS charging decision and restarting on return to the police).

Pre-conditions for pre-charge bail

The pre-conditions for pre-charge bail are defined in s.50A PACE - and require:

• 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
• An officer of the rank of police inspector or above authorises the release on bail having considered any representations made by the person or the person's legal representative.

If the pre-conditions for bail are not satisfied, then the release must be without bail.

Releases on bail under section 34, 37(2) and 37(7)(b) and 37(7)(c) PACE are subject to the pre-release conditions as above, as is a release following arrest for breach of pre-charge police bail (but not for terrorism offences for which separate provisions apply). In a similar way, releases on bail following a PACE clock extension (Superintendent authorised extension) or after a warrant of further detention are also subject to the pre-release conditions.

Release for a charging decision to be made by the CPS (under s.37(7)(a) PACE) or a further release following an arrest for a breach of bail by a person who has been bailed for a CPS charging decision under s.37C(2)(b) PACE) is dealt with differently. Such releases allow the custody sergeant to impose bail which is not subject to the pre-release conditions and without the time limits relevant to police investigative bail. These exceptions are contained in s.47ZL PACE.

The applicable bail period

If bail is approved by an Inspector under the pre-release condition the initial "applicable bail period" is 28 days under s.47ZB PACE. The police can set a shorter bail return date for the return of the suspect to the police station before then, but the initial applicable bail period will always be 28 days (save for Serious Fraud Office cases for which see the section below on Other Investigators).

The bail clock starts the day after arrest (as with Custody Time Limits the first day is discounted). Bail can only be extended from 28 days if the Superintendent's decision is made before the expiry of the 28 days.

The Bail Clock (stopped for a CPS charging decision and restarting on return to the police)

The restrictions and time limits on bail do not apply to releases under s.37(7)(a) PACE for cases sent to the CPS for a charging decision. A custody officer who determines that he has sufficient evidence to charge the person arrested can (inter alia) release that person without charge and on bail for the purpose of enabling the DPP to make a charging decision under s.37B PACE. A bail period does not begin in respect of the first release on bail and is suspended in any other case. If the police initially bail under the restrictive bail provisions, and then decide to send the file to the CPS, the bail restrictions are suspended at the point of sending (s.47ZL PACE).

If the police release the person from the police station for the purposes of a charging decision by the CPS, the bail restrictions never start, and the person can be released by the custody sergeant for any period. Conditional bail may also be imposed, and the pre-conditions set out in s.50A PACE do not apply.

The legislation recognises that there will be occasions when the CPS requires more evidence from the police and provides that such requests will start the bail clock running. This may be for the first time (where bail was initially granted under s.37(7)(a)), but where bail was initially granted for further investigation for example, the bail clock will restart for a second time.

Requests for further evidence are defined as a "DPP request" in s.47ZL(12) PACE: a request by the Director of Public Prosecutions for the further information specified in the request to be provided before the DPP decides under s.37B(2) whether there is sufficient evidence to charge the person with the relevant offence.

“Sufficient evidence to charge” is the same wording as the original PACE provision when charging by the CPS was introduced under the Criminal Justice Act 2003: it refers to a realistic prospect of conviction.

When the further information specified in the request to police is provided to the CPS (s.47ZL(12)(b)) that will suspend the applicable bail period and stop the bail clock once more.

It is not for the CPS to monitor the applicable bail period and the stopping and starting of the bail clock, but the CPS should maintain a record of the date a file is received, the date any request is made for more evidence and the date it is received. Although it is for the police to monitor bail periods, queries may arise in dealing with complaints and in the event of any dispute at court about the expiry of the relevant applicable bail period.

The administrative challenges facing the police in monitoring the applicable bail period can be considerable. Any change in bail status will require contact with the suspect and may involve setting a new bail return date.

Police extension of bail, levels of authority and criteria

A Superintendent can extend bail from 28 days to three months, (from the bail start date). The Superintendent's decision must be made before the expiry of the initial 28 days. To authorise an extension, a Superintendent (the decision maker) must be satisfied that the four conditions contained in s. 47ZC PACE are met.

Before making the bail decision, the Superintendent has to arrange for the suspect, or the suspect’s legal representative to be informed that a decision, on bail is to be made. Contacting these individuals may prove problematic in some cases. Then, having invited any representations, the Superintendent must consider them and then arrange for the suspect or the suspect’s legal representative to be informed whether an extension has been authorised.

Court applications to extend pre-charge bail

The court extension of bail: overview and criteria

Should investigators require more than three months bail to conclude an investigation, a first application for an extension will be made to the magistrates' court. The application can only be granted if the period to be extended has not already expired.

Before the court can authorise an extension, it must be satisfied that Conditions B to D above  are met (s.47ZF(3) PACE). The court does not need to be satisfied that there are reasonable grounds for suspecting the person in question is guilty (Condition A) on the basis that the determination of guilt is a trial issue.

The court determines the length of any pre-charge bail extension. Under s.47ZF(7) PACE if the court is satisfied that the decision to charge is likely to be made, or the further investigation is likely to be completed, (Condition B above) within an additional 3 months, it may extend bail to 6 months from the bail start date, 9 months for a designated case or an SFO case). If, however, the court is not so satisfied, and more time will be required, the court can extend bail to 9 months in volume crime case and 12 months in designated and SFO cases from the start of the original bail period.

Not all investigations or charging decisions will be completed within the period of the extensions granted. Clause 47ZG deals with subsequent extensions by the court. Before the expiry of the relevant bail period, the court has the power, on application, to extend the bail period for a further 3 months or 6 months depending on the likely timing of charging or completion of the investigations.

Applications to the court to extend can be made by either a constable or a Crown Prosecutor. As with applications for warrants of further detention it is anticipated that the police will make these applications save for rare cases when the CPS may choose to assist in the preparation and presentation of any application. The CPS may want to assist in designated cases involving highly sensitive material (see the section Dealing with 'specified' sensitive information).

Method of application

The Criminal Procedure Rules 14.20 - 14.22 set out the process for an application. Forms are prescribed for making the application; the response and for applications to withhold sensitive information. Applications are ordinarily determined by a single justice of the peace on written evidence with no attendance required. Oral hearings (not in open court) may be requested. 47ZF – ZJ of PACE contain the relevant provisions.

Timing of application and late applications

Applications to the court must be made before the expiry of the bail period. The decision must be determined by the court as soon as practicable but no sooner than 5 business days after the application was served to allow time for the suspect to respond (CrimPR 14.20). Section 47ZJ PACE covers what are called late applications. This provision deals with applications that have been made to the court before the end of a bail period but are made so late that the court is unable to determine the application before the end of the bail period. In these circumstances, the court must determine the application as soon as possible with the safeguard that the period is treated as extended until the court makes a decision and any bail conditions will remain in place until then.

In practice, s.47ZJ(4) PACE and CrimPR 14.20 taken together will mean that applications to the court should be made at least 5 business days before the expiry of the bail period.

Dealing with 'specified' sensitive information

Provision is made in s.47ZH PACE for an application to the court to be made to exclude the suspect and his representative from receiving what is called 'specified information' in the application or from being at court for the hearing or part of the hearing while the application is made

CrimPR 14.22 sets out the process for these applications. There is also a prescribed form for submitting such material to the court. This form, unlike the application to extend and the form for a response, must not be served on the respondent.

Investigators may want to request an oral hearing for extension applications so they can hand documents to the court, and then recover them at the end of the hearing. It is for the court to determine whether it is in the interest of justice to have a hearing.

Designated cases

Exceptionally complex cases and qualifying prosecutors

The usual bail periods for standard cases is 28 days (authorised by an Inspector) with a possible extension to three months (authorised by a Superintendent). Any extension beyond three months requires the approval of the court (for periods of three or six months).

There is an exception contained in s.47ZE PACE for 'designated cases.' The exception only applies to cases where:

• a Superintendent has already granted an extension up to three months, as above; and
• A qualifying prosecutor has designated the case as being exceptionally complex.

Provided those conditions are met a qualifying police officer can extend bail to a maximum of six months (from the initial bail date) before a court application is required.

A 'qualifying prosecutor' is a prosecutor of the description 'designated' for the purposes of the s.47ZE by the DPP. The DPP has designated all Deputy Chief Crown Prosecutors and Deputy Heads of Division in the Central Casework Divisions.

The role of the 'qualifying prosecutor' is to decide whether the case is exceptionally complex, not to decide whether bail should be extended from three to six months.

A 'qualifying police officer' is either a Commander or Assistant Chief Constable (ACC). That officer is responsible for deciding whether bail should be extended from three to six months. The process is the same as for the Superintendent's authority to extend up to 3 months; the ACC or Commander has to be satisfied conditions A to D in s.47ZC PACE are met.

The qualifying officer is responsible for:

• consulting the qualified prosecutor. Section 47ZE(5)(b) PACE does not specify what form this consultation should take. The decision as to whether bail is to be extended is for the qualifying police officer, not the prosecutor.
• informing the suspect or their legal representative of the intention to make a decision,
• considering any representations; and
• informing the suspect or their representative that a determination has been made.

Section 47ZE PACE does not define what might amount to an "exceptionally complex case" That decision is for the qualifying prosecutor. The following factors have been identified as indicators of exceptional complexity. The presence of one or more of these factors will not necessarily mean that a case is considered exceptionally complex. Qualifying prosecutors must make this decision based on a case by case basis:

• The number of suspects and victims
• The amount and nature of digital material
• The number of offences under consideration
• The volume of potential prosecution evidence
• The volume of unused material to be considered
• Investigations abroad
• The number and location of jurisdictions to which requests for Mutual Legal Assistance (MLA) are being made
• The existence of parallel overseas investigations
• Joint investigations with overseas investigators
• Issues relating to the use of sensitive material in evidence (including the use of undercover officers, immunities from prosecution and witness anonymity)
• Issues relating to highly sensitive unused (including RIPA and CHIS)
• The length of any potential trial (will it exceed 40 days)
• Any requirement for consent from the Attorney General
• Exceptionally complex expert evidence
• Novel and complex points of law

The process - requests for CPS to designate case as exceptionally complex

Investigators should contact the relevant CPS area or Casework Division to obtain contact details for qualifying prosecutors. The request should;

• Submit the request for designation of a case as exceptionally complex, separate to any request for early advice;
• Email the qualifying prosecutor including;
  • The Unique Reference Number (URN);
  • The suspects’ full name and date of birth
  • The expiry date for the three month bail period;
  • A copy of the superintendent’s extension (from 28 days to three months);
  • why the investigator thinks the case should be designated as exceptionally complex; and
  • a brief case summary;

The CPS will maintain a record of this communications and the accompanying documents.

Investigators will need to be aware that if a qualifying prosecutor designates the case as exceptionally complex it will be considered by ACCs/Commanders for a bail extension.

Investigators will also need to consider what if any benefit will flow from the designation of a case as exceptionally complex. Investigations that are likely to take more than six months for example will require a court application at that point and it may be more efficient to apply for a court extension at 3 months (for a further six months) than to seek designation from a qualifying prosecutor and an extension from an ACC/Commander.

Other investigators

The Policing and Crime Act makes specific provision for the Serious Fraud Office and the Financial Conduct Authority. Other investigators such as HMRC and the NCA are subject to the PACE limits and restrictions on bail. These investigators already rely on police assistance with suspects detained in custody, with custody officers authorising detention and Inspectors reviews of the PACE detention clock. They will need police Inspectors to authorise bail for 28 days, police Superintendents to extend to three months and, in designated cases, police ACCs and Commanders to extend to six months. Court applications to extend can be made by constables and Crown Prosecutors. Some investigators will have the powers available to police constables to make these applications, but others may need to rely on police assistance.

Serious Fraud Office (SFO) cases are subject to different time limits with an initial bail period of 3 months rather than 28 days. The SFO can also designate cases as exceptionally complex, extend bail and make applications to the court without reference to the police. It is notable that the legislation envisages the existence of SFO cases that are not exceptionally complex.

Further Information

Breaches of pre-charge police bail - terrorist offences

Section 68 of the Policing and Crime Act 2017 creates a new offence of breach of pre-charge bail conditions related to travel. This applies where a person arrested on suspicion of committing a relevant terrorism offence, is released on pre-charge bail and subsequently breaches conditions of that bail aimed at preventing them from leaving, or attempting to leave, the UK.

Street Bail

A person who has been arrested by a constable other than at a police station may be released on bail (so called street bail) provided:

• the constable is satisfied that the release on bail is necessary and proportionate in all the circumstances, having regard, in particular, to any conditions of bail which would be imposed; and
• an officer of the rank of police inspector or above authorises the release on bail, having considered any representations made by the person.

Any such release on bail to the police station is for a maximum of 28 days. Any extension will require a Superintendent's authority. This 28 day period is presumed to be the first and only period of 28 days just as if the person had been released on pre-charge bail from the police station.

The need to contact the Inspector and for the inspector to receive and consider representations may act as a significant disincentive to the future use of street bail, which is not widely used in any event.

Re-arrest for additional evidence or subsequent analysis of existing evidence

Amendments have been made to PACE which have clarified the circumstances when a re-arrest can be made. The circumstances in which a re-arrest could take place following e.g., a positive forensic analysis was uncertain for many years. The argument was that this was not 'new' evidence as it was already in the possession of the police. The Policing and Crime Act amended PACE by adding the words: 'since the person's release, new evidence has come to light, or an examination or analysis of the existing evidence has been made which could not reasonably have been made before the person's release' and provides for the re-arrest of an individual in such circumstances.

This change has been made in the following sections of PACE:

• Section 30C(4) - street bail release
• Section 41(9) - release following expiry of the 24 hour custody clock
• Section 42(11) - release following the expiry of the 36 hours custody clock
• Section 43(19) - release following the expiry of a warrant for further detention
• Section 47(2) - bail to return to a police station

Release on expiry of the PACE custody clock time limits; and the new more certain powers of arrest indicate that the new arrest will start a new PACE custody clock.

Annex 9

Pre-charge Police Bail after 28 October 2022

Introduction

Pre-charge police bail is governed by provisions in the Police and Criminal Evidence Act 1984 (“PACE”).

The PACE provisions as to pre-charge bail changed on 3 April 2017 as a result of amendments made by the Policing and Crime Act 2017; and then again on 28 October 2022 as a result of amendments made by Section 45 of the Police, Crime Sentencing and Courts Act 2022 (“PCSCA 2022”).

The 2022 provisions apply to pre-charge bail for those arrested for an offence on or after 28 October 2022 (s.45(3) PCSCA). Those arrested before that date but after 3 April 2017 will be subject to the previous provisions of PACE.

The PCSCA 2022 amendments to PACE (in force from 28 October 2022) are complex but most of the changes are to be found in ss.47ZA - 47ZM and s.50A and s.50B.

PACE sets out certain restrictions and time limits on most pre-charge bail (with or without conditions). Pre-charge bail can only be used where necessary and proportionate. Standard cases have an initial bail period of three months (authorised by a custody officer), an extension to six months (authorised by an Inspector), an extension to nine months (authorised by a Superintendent), with extensions beyond nine months requiring an application to the court.

There are a number of exceptions. The most notable exception being for suspects bailed for a charging decision from the CPS under s.37(7)(a) PACE. The exceptions are dealt with below.

In cases where either bail is not necessary and proportionate, or the time limit has expired, suspects can be released without bail while an investigation continues (usually known as a release without investigation or RUI). PACE does not set time limits for these cases.

Pre-charge bail – reasons for bail

The impact of the amendments to PACE depends on the reason for the grant of pre-charge police bail. The amendments do not affect post-charge police bail (bail for court) under s.38 PACE.

Release on bail by the police for a charging decision by the CPS under s.37(7)(a) PACE (or a further release following an arrest for breach of bail by a person who has been bailed for a CPS charging decision under s.37C(2)(b)) is not subject to the time limits and restrictions introduced by the Policing and Crime Act 2017.

Release by the police on pre-charge bail for other reasons is subject to the pre-release conditions contained in s.50A of PACE and the time limits and processes contained in s.47ZA - s.47ZM PACE. They apply to conditional and unconditional bail including bail for further investigation, and bail whilst the police make a charging decision.

The conditions, time limits and process that apply to police bail for further investigation under s.37(2)(b) PACE will lead to the release of some suspects without bail while an investigation continues. The pre-release conditions in s50A and the time limits and processes in s.47ZA - ZM do not apply to releases without bail.

Cases submitted to the CPS by the police for early investigative advice will involve suspects who are not on bail as well as suspects who are on bail and subject to the time limits and processes set out in s.47ZA-47ZM. The submission of a case to the CPS for early investigative advice does not suspend the bail clock and the relevant bail period.

There will be cases where the police bail a suspect for further investigation under s.37(2) PACE and then having completed their investigations submit the case to the CPS for a charging decision, having concluded there is sufficient evidence to provide a realistic prospect of conviction. S.47ZL(2)(b) PACE provides that the applicable bail period is suspended when the case is referred to the CPS for a charging decision (see the section below on The Bail Clock (stopped for a CPS charging decision and restarting on return to the police).

Pre-conditions for pre-charge bail

The pre-conditions for pre-charge bail are defined in s.50A PACE - and require:

• 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
• The custody officer authorises the release on bail having considered any representations made by the person or the person's legal representative (s.36 PACE provides more detail about custody officers who must be of the rank of sergeant or above)
• 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 the factors set out in s.50A(2) PACE. These include:
  1. the need to secure that the person surrenders to custody;
  2. the need to prevent offending by the person;
  3. the need to safeguard victims of crime and witnesses, taking into account any vulnerabilities of any alleged victim or alleged witness;
  4. thee need to safeguard the arrested person, taking into account any vulnerabilities of that person;
  5. the need to manage risks to the public.
• In any case in which pre-charge bail is being considered under these provisions the investigating officer must seek the views of the alleged victim if it is reasonably practicable to do so. Views should be sought on whether and what relevant conditions should be imposed on the suspect’s s bail. A "relevant condition" is one that relates to the safeguarding of the alleged victim. See s.47ZZA PACE, which also includes an obligation on investigators to consult alleged victims on any proposed variation of pre-charge bail and to inform them of any condition imposed (if reasonably practicable).

Under s.50B PACE the College of Policing can issue guidance to assist officers in making decisions about pre-charge bail. If the pre-conditions for bail in s.50A PACE are not satisfied, then the release must be without bail.

Releases on bail under sections 34, 37(2), 37(7)(b) and 37(7)(c) PACE are subject to the pre-release conditions as above, as is a release following arrest for breach of pre-charge police bail (but not for terrorism offences, for which separate provisions apply). In a similar way, releases on bail following a PACE clock extension (superintendent authorised extension) or after a warrant of further detention are also subject to the pre-release conditions.

Release for a charging decision to be made by the CPS (under s.37(7)(a) PACE) or a further release following an arrest for a breach of bail by a person who has been bailed for a CPS charging decision (under s.37C(2)(b) PACE) is dealt with differently. Such releases allow the custody sergeant to impose bail which is not subject to the pre-release conditions in s.50A PACE and without the time limits relevant to police investigative bail. These exceptions are contained in s.47ZL PACE.

The applicable bail period

If bail is approved by a custody officer under the pre-release condition the initial "applicable bail period" is three months under s.47ZB PACE. The police can set a shorter bail return date for the return of the suspect to the police station before then, but the initial applicable bail period will always be three months (save for Serious Fraud Office cases and certain other cases, for which see the section below on Other Investigators).

The bail clock starts the day after arrest (as with Custody Time Limits the first day is discounted). Bail can only be extended from three months if the Inspector’s decision is made before the expiry of the three months.

The Bail Clock (stopped for a CPS charging decision and restarting on return to the police)

The restrictions and time limits on bail do not apply to releases under s.37(7)(a) PACE for cases sent to the CPS for a charging decision. A custody officer who determines that they have sufficient evidence to charge the person arrested can (inter alia) release that person without charge and on bail for the purpose of enabling the DPP to make a charging decision under s.37B PACE. A bail period does not begin in respect of the first release on bail and is suspended in any other case. If the police initially bail under the restrictive bail provisions, and then decide to send the file to the CPS, the bail restrictions are suspended at the point of sending (s.47ZL PACE).

If the police release the person from the police station for the purposes of a charging decision by the CPS, the bail restrictions never start, and the person can be released by the custody sergeant for any period. Conditional bail may also be imposed, and the pre-conditions set out in s.50A PACE do not apply.

The legislation recognises that there will be occasions when the CPS requires more evidence from the police and provides that such requests will start the bail clock running. This may be for the first time (where bail was initially granted under s.37(7)(a)), but where bail was initially granted for further investigation for example, the bail clock will restart for a second time.

Requests for further evidence are defined as a "DPP request" in s.47ZL(12) PACE: a request by the DPP for the further information specified in the request to be provided before the DPP decides under s.37B(2) whether there is sufficient evidence to charge the person with the relevant offence.

“Sufficient evidence to charge” is the same wording as the original PACE provision when charging by the CPS was introduced under the Criminal Justice Act 2003: it refers to a realistic prospect of conviction.

When the further information specified in the request to police is provided to the CPS (s.47ZL(12)(b)) that will suspend the applicable bail period and stop the bail clock once more.

It is not for the CPS to monitor the applicable bail period and the stopping and starting of the bail clock but the CPS should maintain a record of the date a file is received, the date any request is made for more evidence and the date it is received.  Although it is for the police to monitor bail periods, queries may arise in dealing with complaints and in the event of any dispute at court about the expiry of the relevant applicable bail period.

The administrative challenges facing the police in monitoring the applicable bail period can be considerable. Any change in bail status will require contact with the suspect and may involve setting a new bail return date.

Police extension of bail, levels of authority and criteria

An inspector can extend bail from three months to six months, from the bail start date (s.47ZD PACE) and a superintendent can extend bail from six months to nine months (s.47ZDA PACE). The decision to extend must be made before the expiry of the initial three months for the first extension or six months for the second extension. To authorise an extension, the inspector or superintendent (the police decision maker) must be satisfied that the four conditions contained in s. 47ZC PACE are met.

Before making the bail decision, the police decision maker has to arrange for the suspect, or the suspect’s legal representative to be informed that a decision, on bail is to be made. Contacting these individuals may prove problematic in some cases. Then, having invited any representations, the police decision maker must consider them and then arrange for the suspect or the suspect’s legal representative to be informed whether an extension has been authorised.

Court applications to extend pre-charge bail

The court extension of bail: overview and criteria

Should investigators require more than nine months bail to conclude an investigation, a first application for an extension will be made to the magistrates' court. The application can only be granted if the period to be extended has not already expired.

Before the court can authorise an extension, it must be satisfied that Conditions B to D in s.47ZC PACE are met (s.47ZF(3) PACE). The court does not need to be satisfied that there are reasonable grounds for suspecting the person in question is guilty (Condition A) on the basis that the determination of guilt is a trial issue.

The court determines the length of any pre-charge bail extension. Under s.47ZF(7) PACE if the court is satisfied that the decision to charge is likely to be made, or the further investigation is likely to be completed, (Condition B above) within an additional 3 months, it may extend bail to 12 months from the bail start date (18 months for a designated case or an SFO case). If, however, the court is not so satisfied and more time will be required, the court can extend bail to 18 months in volume crime case, and 24 months in designated and SFO cases, from the start of the original bail period.

Not all investigations or charging decisions will be completed within the period of the extensions granted. Clause 47ZG deals with subsequent extensions by the court. Before the expiry of the relevant bail period, the court has the power, on application, to extend the bail period for a further 3 months or 6 months depending on the likely timing of charging or completion of the investigations.

Applications to the court to extend can be made by either a constable or a Crown Prosecutor. As with applications for warrants of further detention it is anticipated that the police will make these applications save for rare cases when the CPS may choose to assist in the preparation and presentation of any application. The CPS may want to assist in designated cases involving highly sensitive material (see the section Dealing with 'specified' sensitive information).

Method of application

The Criminal Procedure Rules 14.18 -14.20 set out the process for an application. Forms are prescribed for making the application, the response and for applications to withhold sensitive information. Applications are ordinarily determined by a single justice of the peace on written evidence with no attendance required. Oral hearings (not in open court) may be requested: 47ZF – ZJ of PACE contain the relevant provisions.

Timing of application and late applications

Applications to the court must be made before the expiry of the bail period. The decision must be determined by the court as soon as practicable but no sooner than 5 business days after the application was served to allow time for the suspect to respond (CrimPR 14.18). Section 47ZJ PACE covers what are called late applications. This provision deals with applications that have been made to the court before the end of a bail period but are made so late that the court is unable to determine the application before the end of the bail period. In these circumstances, the court must determine the application as soon as possible with the safeguard that the period is treated as extended until the court makes a decision and any bail conditions will remain in place until then.

In practice, s.47ZJ(4) PACE and CrimPR 14.18 taken together will mean that applications to the court should be made at least 5 business days before the expiry of the bail period.

Dealing with 'specified' sensitive information

Provision is made in s.47ZH PACE for an application to the court to be made to exclude the suspect and his representative from receiving what is called 'specified information' in the application or from being at court for the hearing or part of the hearing while the application is made

CrimPR 14.20 sets out the process for these applications. There is also a prescribed form for submitting such material to the court. This form, unlike the application to extend and the form for a response, must not be served on the respondent.

Investigators may want to request an oral hearing for extension applications so they can hand documents to the court, and then recover them at the end of the hearing. It is for the court to determine whether it is in the interest of justice to have a hearing.

Designated cases

Exceptionally complex cases and the role of the CPS

The usual bail period for standard cases is three months with two possible xtensions to nine months. Any extension beyond nine months requires the approval of the court 

There is an exception contained in s.47ZE PACE for 'designated cases.' The exception only applies to cases where:

• a Superintendent has already granted an extension up to nine months under s.47ZDA PACE as above; and
• the Director of Public Prosecutions has designated the case as being exceptionally complex. In this context and in accordance with s.1(7) of the Prosecution of Offences Act 1985 a Crown Prosecutor can designate a case as exceptionally complex (but see below for the procedure to follow).

Provided those conditions are met a qualifying police officer can extend bail to a maximum of twelve months (from the initial bail date) before a court application is required.

The role of the prosecutor is to decide whether the case is exceptionally complex, not to decide whether bail should be extended from nine to twelve months.

A 'qualifying police officer' is either a Commander or Assistant Chief Constable (ACC). That officer is responsible for deciding whether bail should be extended from nine to twelve months. The process is similar to that for the inspector’s and superintendent’s authority to extend; the ACC or Commander has to be satisfied conditions A to D in s.47ZC PACE are met.

The qualifying officer is responsible for:

• consulting the prosecutor. Section 47ZE(5)(b) PACE does not specify what form this consultation should take. The decision as to whether bail is to be extended is for the qualifying police officer, not the prosecutor.
• informing the suspect or their legal representative of the intention to make a decision,
• considering any representations; and
• informing the suspect or their representative that a determination has been made.

Section 47ZE PACE does not define what might amount to an "exceptionally complex case".  That decision is for the prosecutor. The following factors have been identified as indicators of exceptional complexity. The presence of one or more of these factors will not necessarily mean that a case is considered exceptionally complex. Prosecutors must make this decision on a case by case basis: 

• The number of suspects and victims
• The amount and nature of digital material
• The number of offences under consideration
• The volume of potential prosecution evidence
• The volume of unused material to be considered
• Investigations abroad
• The number and location of jurisdictions to which requests for Mutual Legal Assistance (MLA) are being made
• The existence of parallel overseas investigations
• Joint investigations with overseas investigators
• Issues relating to the use of sensitive material in evidence (including the use of undercover officers, immunities from prosecution and witness anonymity)
• Issues relating to highly sensitive unused (including RIPA and CHIS)
• The length of any potential trial (will it exceed 40 days)
• Any requirement for consent from the Attorney General
• Exceptionally complex expert evidence
• Novel and complex points of law

The process - requests for CPS to designate case as exceptionally complex

Investigators should contact the relevant CPS area or Casework Division to obtain contact details for the relevant prosecutor. The request should:

• Submit the request for designation of a case as exceptionally complex, separate to any request for early advice;
• Email the qualifying prosecutor including:
  • The Unique Reference Number (URN);
  • The suspect’s full name and date of birth
  • The expiry date for the nine month bail period;
  • A copy of the superintendent’s extension (to nine months);
  • why the investigator thinks the case should be designated as exceptionally complex; and
  • a brief case summary.

The CPS will maintain a record of these communications and the accompanying documents.

Investigators will need to be aware that if a prosecutor designates the case as exceptionally complex it will be considered by ACCs/Commanders for a bail extension.

Investigators will also need to consider what if any benefit will flow from the designation of a case as exceptionally complex. Investigations that are likely to take more than twelve months for example will require a court application at that point and it may be more efficient to apply for a court extension at nine months (for a further six months) than to seek designation from a prosecutor and an extension from an ACC/Commander.

CPS prosecutors should ensure that any police request for designation under s.47ZE PACE is considered by a Deputy Chief Crown Prosecutor or a Deputy Head of Division in the Casework Divisions.

Other investigators

PACE makes specific provision for the Serious Fraud Office, HM Revenue and Customs, the National Crime Agency and the Financial Conduct Authority. Their cases are subject to different time limits with an initial bail period of six months rather than three months (s.47ZB PACE).

Extensions from six months to twelve months in such cases can be granted by the “appropriate decision makers” at SFO, HMRC, NCA and the FCA as set out in s.47ZDB PACE.

Extensions of pre-charge bail beyond 12 months will require an application to the court for an extension of bail and those applications can be made by “qualified applicants” at SFO, HMRC, NCA and the FCA as set out in s.47ZF PACE.

Further Information

Breaches of pre-charge police bail - terrorist offences

Section 68 of the Policing and Crime Act 2017 creates an offence of breach of pre-charge bail conditions related to travel. This applies where a person arrested on suspicion of committing a relevant terrorism offence, is released on pre-charge bail and subsequently breaches conditions of that bail aimed at preventing them from leaving, or attempting to leave, the UK.

Street Bail

A person who has been arrested by a constable other than at a police station may be released on bail (so called street bail) provided:

• the constable is satisfied that the release on bail is necessary and proportionate in all the circumstances, having regard, in particular, to any conditions of bail which would be imposed; and
• a custody officer authorises the release on bail, having considered any representations made by the person.

Any such release on bail to the police station is for a maximum of three months and extensions can be granted that are similar to the processes set out above. See s.30A and 30B PACE for more detail about street bail.

Re-arrest for additional evidence or subsequent analysis of existing evidence

Amendments made in 2017 to PACE clarified the circumstances when a re-arrest can be made. The circumstances in which a re-arrest could take place were uncertain for many years. The argument was that something like a positive forensic analysis of an exhibit was not 'new' evidence as it was already in the possession of the police. The Policing and Crime Act 2017 amended PACE by adding the words: 'since the person's release, new evidence has come to light, or an examination or analysis of the existing evidence has been made which could not reasonably have been made before the person's release' and provides for the re-arrest of an individual in such circumstances.

This change has been made in the following sections of PACE:

• Section 30C (4) - street bail release
• Section 41(9) - release following expiry of the 24 hour custody clock
• Section 42(11) - release following the expiry of the 36 hours custody clock
• Section 43(19) - release following the expiry of a warrant for further detention
• Section 47(2) - bail to return to a police station

Release on expiry of the PACE custody clock time limits and the new more certain powers of arrest suggest that the new arrest will start a new PACE custody clock, but these provisions do not expressly state that.

Arrest for breach of pre-charge bail conditions and the PACE custody clock

The Police, Crime Sentencing and Courts Act 2022 introduced a new s.47(6A) PACE that adds three hours to the PACE custody clock when an individual is arrested on suspicion of a breach of pre-charge bail. This will provide investigators with more time to complete any outstanding lines of enquiry and seek a charging decision in these cases where they are in a position to do so. Before this provision came into force (when the first arrest for the offence under investigation was on or after 28 October 2022) such an arrest could leave the police with very little time on the PACE custody clock if that time had been used during an earlier period of detention.