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Release of Person Arrested 

Release of Person Arrested
Chapter:
Release of Person Arrested
Author(s):

David Johnston

and Glenn Hutton

DOI:
10.1093/law/9780198806110.003.0003
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Subscriber: null; date: 15 August 2018

2.3.1 Introduction

The release of persons arrested are regulated by the Bail Act 1976, the Police and Criminal Evidence Act 1984 and the Criminal Justice and Public Order Act 1994.

Significant changes to the existing legislation have been made by the Policing and Crime Act 2017 providing for a presumption in favour of releasing a suspect without bail, with bail only being imposed when it is both necessary and proportionate. It also sets out a clear expectation that pre-charge bail should not last longer than 28 days and should only be extendable in complex cases or exceptional circumstances.

2.3.2 Person Arrested Elsewhere than at a Police Station

Where a person is arrested at any place other than a police station, or taken into custody by a constable following an arrest made by a civilian, the constable is normally obliged to take that person to a designated police station (Police and Criminal Evidence Act 1984, s. 30(1), (1A), (1B) and (2)), or in certain circumstances to a non-designated police station ((s. 30(3) to (6)).

An arrested person may, instead of being taken to a police station, be released with bail (known as ‘street bail’) or without bail to attend at a police station at a later date. The provisions of the 1984 Act in relation to this are detailed below.

2.3.2.1 Release of Arrested Person and Street Bail

The Police and Criminal Evidence Act 1984, s. 30A provides for persons arrested elsewhere than at a police station to be released with or without bail without being required to attend a police station.

  1. Section 30A(1) A constable may release a person who is arrested or taken into custody in the circumstances mentioned in s. 30(1)—

    1. (a) without bail unless subs. (1A) applies, or

    2. (b) on bail if subs. (1A) applies.

  2. Section 30(1A) This subsection applies if—

    1. (a) the constable 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

    2. (b) a police officer of the rank of inspector or above authorises the release on bail having considered any representations made by the person.

  3. Section 30A(2) A person may be released under subs. (1) at any time before he arrives at a police station.

  4. Section 30A(3) A person released on bail under subs. (1) must be required to attend a police station.

  5. Section 30A(3A) Where a constable releases a person on bail under subs. (1)—

    1. (a) no recognizance for the person’s surrender to custody shall be taken from the person,

    2. (b) no security for the person’s surrender to custody shall be taken from the person or from anyone else on the person’s behalf,

    3. (c) the person shall not be required to provide a surety or sureties for his surrender to custody, and

    4. (d) no requirement to reside in a bail hostel may be imposed as a condition of bail.

  6. Section 30A(3B) Subject to subs. (3A), where a constable releases a person on bail under subs. (1) the constable may impose, as conditions of the bail, such requirements as appear to the constable to be necessary—

    1. (a) to secure that the person surrenders to custody,

    2. (b) to secure that the person does not commit an offence while on bail,

    3. (c) to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to him or any other person, or

    4. (d) for the person’s own protection or, if the person is under the age of 18, for the person’s own welfare or in the person’s own interests.

  7. Section 30A(4) Where a person is released on bail under subs. (1), a requirement may be imposed on the person as a condition of bail only under the preceding provisions of this section.

  8. Section 30A(5) The police station which the person is required to attend may be any police station.

Keynote

Section 30A(3B) enables the officer granting bail to consider attaching conditions relevant and proportionate to the suspect and the offence. The conditions that may be considered are the same as those available to a custody officer as contained in s. 3A(5) of the 1976 Act, except for those specified in s. 30A(3A).

A constable who is satisfied that there are no grounds for keeping the arrested person under arrest or releasing him or her on bail under s. 30A must release that person (s. 30(7) and (7A)).

2.3.2.2 Notice in Writing

  1. Section 30B(1) Where a constable releases a person under s. 30A, he must give that person a notice in writing before he is released.

  2. Section 30B(2) The notice must state—

    1. (a) the offence for which he was arrested,

    2. (b) the grounds on which he was arrested, and

    3. (c) whether the person is being released without bail or on bail.

  3. Section 30B(3) A notice given to a person released on bail must inform him that he is required to attend a police station.

  4. Section 30B(4) The notice must also specify—

    1. (a) the police station which the person is required to attend, and

    2. (b) the time on the bail end date when the person is required to attend the police station.

  5. Section 30B(4A) If the person is granted bail subject to conditions under s. 30A(3B), the notice also—

    1. (a) must specify the requirements imposed by those conditions,

    2. (b) must explain the opportunities under ss. 30CA(1) and 30CB(1) for variation of those conditions.

  6. Section 30B(6) The person may be required to attend a different police station from that specified in the notice under subs. (1) or to attend at a different time or an additional time.

  7. Section 30B(6A) A person may not be required under subsection (6) to attend at a police station at a time which is after the bail end date in relation to the person.

  8. Section 30B(7) He must be given notice in writing of any such change as is mentioned in subs. (6) but more than one such notice may be given to him.

  9. Section 30B(8) In this section ‘bail end date’, in relation to a person, means the last day of the period of 28 days beginning with the day after the day on which the person was arrested for the offence in relation to which bail is granted under section 30A.

Keynote

The section requires that the bail notice must, in addition to the existing requirements, set out the date, time and place at which bail must be answered. The date is required to be 28 days from the day after arrest. There is no provision to extend bail granted under s. 30A, nor can the bail return date be altered where its use extends street bail beyond the 28-day limit.

The only exception for bail to be extended beyond 28 days is if, at any time on the day on which the applicable bail period in relation to a person would end, the person is in hospital as an in-patient. The running of the applicable bail period in relation to the person is to be treated as having been suspended for any day on which the patient was in hospital as an in-patient (s. 47ZM).

2.3.2.3 Release, Attendance and Re-arrest

  1. Section 30C(1) A person who has been required to attend a police station is not required to do so if he is given notice in writing that his attendance is no longer required.

  2. Section 30C(2) If a person is required to attend a police station which is not a designated police station he must be—

    1. (a) released, or

    2. (b) taken to a designated police station, not more than six hours after his arrival.

  3. Section 30C(3) Nothing in the Bail Act 1976 applies in relation to bail under s. 30A.

  4. Section 30C(4) Nothing in s. 30A or 30B or in this section prevents the re-arrest without warrant of a person released under s. 30A if, since the person’s release, new evidence has come to light or an examination or analysis of existing evidence has been made which could not reasonably have been made before the person’s release.

2.3.2.4 Variation of Bail Conditions: Police

  1. Section 30CA(1) Where a person released on bail under s. 30A(1) is on bail subject to conditions—

    1. (a) a relevant officer at the police station at which the person is required to attend,

      may, at the request of the person but subject to subs. (2), vary the conditions.

  2. Section 30CA(2) On any subsequent request made in respect of the same grant of bail, subs. (1) confers power to vary the conditions of the bail only if the request is based on information that, in the case of the previous request or each previous request, was not available to the relevant officer considering that previous request when he/she was considering it.

  3. Section 30CA(3) Where conditions of bail granted to a person under s. 30A(1) are varied under subs. (1)—

    1. (a) paragraphs (a) to (d) of s. 30A(3A) apply,

    2. (b) requirements imposed by the conditions as so varied must be requirements that appear to the relevant officer varying the conditions to be necessary for any of the purposes mentioned in paragraphs (a) to (d) of s. 30A(3B), and

    3. (c) the relevant officer who varies the conditions must give the person notice in writing of the variation.

  4. Section 30CA(4) Power under subs. (1) to vary conditions is, subject to subs. (3)(a) and (b), power—

    1. (a) to vary or rescind any of the conditions, and

    2. (b) to impose further conditions.

Keynote

The ‘relevant officer’ (s. 30CA(3)(c)) means a custody officer in relation to a designated police station. In relation to any other police station the ‘relevant officer’ means a constable who is not involved in the investigation of the offence for which the person making the request under subsection (1) was under arrest when granted bail under s. 30A(1), if such a constable is readily available. If no such constable is readily available, the ‘relevant officer’ means a constable other than the one who granted bail to the person, if such a constable is readily available, and if no such constable is readily available, it means the constable who granted bail (s. 30CA(5)).

2.3.2.5 Variation of Bail Conditions: Court

  1. Section 30CB(1) Where a person released on bail under s. 30A(1) is on bail subject to conditions, a magistrates’ court may, on an application by or on behalf of the person, vary the conditions if—

    1. (a) the conditions have been varied under s. 30CA(1) since being imposed under s. 30A(3B),

    2. (b) a request for variation under s. 30CA(1) of the conditions has been made and refused, or

    3. (c) a request for variation under s. 30CA(1) of the conditions has been made and the period of 48 hours beginning with the day when the request was made has expired without the request having been withdrawn or the conditions having been varied in response to the request.

Keynote

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

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

  1. Section 30D(1) A constable may arrest without warrant a person who—

    1. (a) has been released on bail under s. 30A subject to a requirement to attend a specified police station, but

    2. (b) fails to attend the police station at the specified time.

  2. Section 30D(2) A person arrested under subs. (1) must be taken to a police station (which may be the specified police station or any other police station) as soon as practicable after the arrest.

  3. Section 30D(2A) A person who has been released on bail under s. 30A may be arrested without a warrant by a constable if the constable has reasonable grounds for suspecting that the person has broken any of the conditions of bail.

  4. Section 30D(2B) A person arrested under subs. (2A) must be taken to a police station (which may be the specified police station mentioned in subs. (1) or any other police station) as soon as practicable after the arrest.

  5. Section 30D(3) In subs. (1), ‘specified’ means specified in a notice under subs. (1) of s. 30B or, if notice of change has been given under subs. (7) of that section, in that notice.

Keynote

Section 30D(1) and (2) relate to a person’s failure to answer his/her bail at the specified time and place. Section 30D(2A) and (2B) provide a power of arrest where a constable has reasonable grounds to suspect that a person has broken any of the conditions of bail.

2.3.3 Pre-charge Release of Person Arrested and Bail

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

  • the custody officer determines that there is sufficient evidence to charge that person with the offence for which he or she was arrested and may detain him or her at the police station for such period as is necessary to enable him or her to do so (s. 37(1));

  • the custody officer determines that there is insufficient evidence to charge that person with the offence for which he or she has been arrested, the person shall be released without bail unless the pre-conditions for bail are satisfied, or on bail if the pre-conditions are satisfied (s. 37(2));

  • the custody officer has reasonable grounds for believing that the person’s detention without being charged is necessary to secure or preserve evidence, then the person may be kept in police detention (s. 37(3));

  • subject to s. 41(7) (below), if there is sufficient evidence to charge the person the custody officer shall release the person without charge and on bail or keep the person in police detention, for the purpose of enabling the DPP to make a decision under s. 37B (s. 37(7)(a));

  • there is sufficient evidence to charge and the custody officer releases the person without charge and without bail unless the pre-conditions for bail are satisfied (s. 37(7)(b));

  • there is sufficient evidence to charge and the custody officer releases the person without charge and on bail if those pre-conditions are satisfied but not for the purpose under s. 37B (s. 37(7)(c);

  • there is sufficient evidence and the person is charged (s. 37(7)(d);

  • a review officer concludes that the detention of a person without charge can no longer be justified and the custody officer releases the person without bail unless the pre-conditions for bail are satisfied (s. 40(8));

  • a person, who at the expiry of 24 hours after the relevant time is in police detention and has not been charged, shall be released at that time without bail unless the pre-conditions for bail are satisfied, or on bail if those pre-conditions are satisfied (s. 41(7)). This subsection does not apply to a person whose detention for more than 24 hours has been authorised or otherwise permitted (s. 41(8)).

Keynote

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

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

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

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

If bail conditions have been imposed by the custody officer these may be varied by a magistrates’ court on the application of the suspect (s. 47(1)(E)). The magistrates may confirm or remove the existing conditions or impose other conditions (Criminal Procedure Rules 2015, r. 14.6). Irrespective of the outcome it continues to be police bail.

A person released on bail under ss. 37(7)(1) and 37(7)(c) who breaches that bail and is arrested under s. 46A (see para. 2.3.3.3) shall be charged or released without bail unless the pre-conditions for bail are satisfied, or on bail if those pre-conditions are satisfied (ss. 37C and 37CA).

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

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

2.3.3.1 Pre-conditions for Bail

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

Interpretation of references to pre-conditions for bail

For the purposes of this Part the following are the pre-conditions for bail in relation to the release of a person by a custody officer—

  1. (a) that the custody officer is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed), and

  2. (b) that an officer of the rank of inspector or above authorises the release on bail (having considered any representations made by the person or the person’s legal representative).

2.3.3.2 Limits on Period of Bail Without Charge

The Policing and Crime Act 2017 has amended the Police and Criminal Evidence Act 1984 to include a regime of time limits and extensions introduced in respect of pre-charge bail. The following is an overview of these changes.

Applicable Bail Period: Initial Limit

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

The ‘applicable bail period’, in relation to a person, means in a Serious Fraud Office (SFO) case, the period of three months beginning with the person’s bail start date, or in a Financial Conduct Authority (FCA) case or any other case, the period of 28 days beginning with the person’s bail start date. A person’s bail start date is the day after the day on which the person was arrested for the relevant offence (s. 47ZB).

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

Applicable Bail Period: Extension of Initial Limit in Standard Cases

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

  • Condition A—the officer has reasonable grounds for suspecting the person in question to be guilty of the relevant offence.

  • Condition B—the officer has reasonable grounds for believing:

    1. (a) in a case where the person in question is or is to be released on bail under s. 37(7)(c) or 37CA(2)(b), that further time is needed for making a decision as to whether to charge the person with the relevant offence, or

    2. (b) otherwise, that further investigation is needed of any matter in connection with the relevant offence.

  • Condition C—the officer has reasonable grounds for believing:

    1. (a) in a case where the person in question is or is to be released on bail under s. 37(7)(c) or 37CA(2)(b), that the decision as to whether to charge the person with the relevant offence is being made diligently and expeditiously, or

    2. (b) otherwise, that the investigation is being conducted diligently and expeditiously.

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

Applicable Bail Period: Extension of Initial Limit in Designated Cases

Pre-charge bail may be extended to a point six months after arrest if the conditions A to D of s. 47ZC are met where a case has been designated as ‘exceptionally complex’ by a senior prosecutor designated for the purpose by the Director of the SFO, the Chief Executive of the FCA or the DPP. Where so designated by the DPP, a police officer of at least the rank of assistant chief constable (Commander in the Metropolitan or City of London forces), may authorise the applicable bail period in relation to the person to be extended so that it ends at the end of the period of six months beginning with the person’s bail start date (s. 47ZE).

Applicable Bail Period: Extensions by Magistrates’ Court

Apart from the exception provided by s. 47ZE, pre-charge bail beyond the point three months after arrest must be authorised by a magistrates’ court. An application must be made before the previous bail period expires and the court may only authorise an extension of bail where satisfied that conditions B to D as set out in s. 47ZC are met (s. 47ZF). The court may extend the bail period by three months, or where investigations to be made are likely to take more than three to conclude, extend the bail by a further six months. Further extensions of the bail period for periods of three months and six months may be authorised by the court (s. 47ZG).

Withholding Sensitive Information

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

Applicable Bail Period: Cases Referred to the DPP

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

2.3.3.3 Power of Arrest for Failure to Answer to Police Bail

The Police and Criminal Evidence Act 1984, s. 46A states:

  1. (1) A constable may arrest without a warrant any person who, having been released on bail under this Part of this Act subject to a duty to attend at a police station, fails to attend at that police station at the time appointed for him to do so.

  2. (1ZA) The reference in subsection (1) to a person who fails to attend at a police station at the time appointed for him to do so includes a reference to a person who—

    1. (a) attends at a police station to answer to bail granted subject to the duty mentioned in section 47(3)(b), but

    2. (b) leaves the police station at any time before the beginning of proceedings in relation to a live link direction under section 57C of the Crime and Disorder Act 1998 in relation to him.

  3. (1ZB) The reference in subsection (1) to a person who fails to attend at a police station at the time appointed for the person to do so includes a reference to a person who—

    1. (a) attends at a police station to answer to bail granted subject to the duty mentioned in section 47(3)(b), but

    2. (b) refuses to be searched under section 54B.

  4. (1A) A person who has been released on bail under this Part may be arrested without warrant by a constable if the constable has reasonable grounds for suspecting that the person has broken any of the conditions of bail.

    1. (1) A person who is arrested under this section shall be taken to the police station appointed as the place at which he is to surrender to custody as soon as practicable after the arrest.

    2. (2) For the purposes of—

      1. (a) section 30 above (subject to the obligation in subsection (2) above), and

      2. (b) section 31 above,

        an arrest under this section shall be treated as an arrest for an offence.

Keynote

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

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

Section 46A(1) provides a power of arrest only where a person fails to attend at that police station at the time appointed. This should be contrasted with s. 46A(1A) where a person released on bail under s. 37 may be arrested if there are reasonable grounds for suspecting that the person has broken any of the conditions of bail.

2.3.3.4 Breach of Pre-charge Bail Conditions Relating to Travel

Offence

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

  • 12 months’ imprisonment and/or a fine on indictment

  • 6 months’ imprisonment and/or a fine summarily

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

  1. (3) The person commits an offence if—

    1. (a) the person’s release on bail is subject to the travel restriction condition mentioned in subsection (2)(a) and he or she fails to comply with the condition, or

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

Keynote

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

Each of the following is a travel restriction condition contained in s. 68(2)(a):

  1. (a) the person must not leave the United Kingdom,

  2. (b) the person must not enter any port, or one or more particular ports, in the United Kingdom,

  3. (c) the person must not go to a place in Northern Ireland that is within one mile of the border between Northern Ireland and the Republic of Ireland,

  4. (d) the person must surrender all of his or her travel documents or all of his or her travel documents that are of a particular kind,

  5. (e) the person must not have any travel documents, or travel documents of a particular kind, in his or her possession (whether the documents relate to that person or to another person),

  6. (f) the person must not obtain, or seek to obtain, any travel documents (whether relating to that person or to another person) or travel documents of a particular kind (e.g. passports, travel tickets or other documents that would enable a person to leave the United Kingdom).

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

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

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

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

2.3.3.5 Notification of Decision not to Prosecute

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

2.3.4 Police Bail After Charge

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

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

  1. (a) to appear before a magistrates’ court at such time and such place as the custody officer may appoint;

  2. (b) to attend at such police station as the custody officer may appoint at such time as he may appoint for the purposes of—

    1. (i) proceedings in relation to a live link direction under section 57C of the Crime and Disorder Act 1998 (use of live link direction at preliminary hearings where accused is at police station); and

    2. (ii) any preliminary hearing in relation to which such a direction is given; or

  3. (c) to attend at such police station as the custody officer may appoint at such time as he may appoint for purposes other than those mentioned in paragraph (b).

Keynote

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

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

2.3.5 Police Bail Restrictions

The Criminal Justice and Public Order Act 1994 provides for those occasions when bail may only be granted in exceptional circumstances where a person is charged with certain specified offences. Section 25 of the 1994 Act states:

  1. (1) A person who in any proceedings has been charged with or convicted of an offence to which this section applies in circumstances to which it applies shall be granted bail in those proceedings only if the court or, as the case may be, the constable considering the grant of bail is of the opinion that there are exceptional circumstances which justify it.

  2. (2) This section applies, subject to subsection (3) below, to the following offences, that is to say—

    1. (a) murder;

    2. (b) attempted murder;

    3. (c) manslaughter;

    4. (d) rape under the law of Scotland;

    5. (e) an offence under section 1 of the Sexual Offences Act 1956 (rape);

    6. (f) an offence under section 1 of the Sexual Offences Act 2003 (rape);

    7. (g) an offence under section 2 of that Act (assault by penetration);

    8. (h) an offence under section 4 of that Act (causing a person to engage in sexual activity without consent) where the activity caused involved penetration within subsection (4)(a) to (d) of that section;

    9. (i) an offence under section 5 of that Act (rape of a child under 13);

    10. (j) an offence under section 6 of that Act (assault of a child under 13 by penetration);

    11. (k) an offence under section 8 of that Act (causing or inciting a child under 13 to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

    12. (l) an offence under section 30 of that Act (sexual activity with a person with a mental disorder impeding choice), where the touching involved penetration within subsection (3)(a) to (d) of that section;

    13. (m) an offence under section 31 of that Act (causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity), where an activity involving penetration within subsection (3)(a) to (d) of that section was caused;

    14. (n) an attempt to commit an offence within any of paragraphs (d) to (m).

  3. (3) This section applies in the circumstances described in subsection (3A) or (3B) only.

  4. (3A) This section applies where—

    1. (a) the person has been previously convicted by or before a court in any part of the United Kingdom of any offence within subsection (2) or of culpable homicide, and

    2. (b) if that previous conviction is one of manslaughter or culpable homicide—

      1. (i) the person was then a child or young person, and was sentenced to long-term detention under any of the relevant enactments, or

      2. (ii) the person was not then a child or young person, and was sentenced to imprisonment or detention.

  5. (3B) This section applies where—

    1. (a) the person has been previously convicted by or before a court in another member State of any relevant foreign offence corresponding to an offence within subsection (2) or to culpable homicide, and

    2. (b) if the previous conviction is of a relevant foreign offence corresponding to the offence of manslaughter or culpable homicide—

      1. (i) the person was then a child or young person, and was sentenced to detention for a period in excess of 2 years, or

      2. (ii) the person was not then a child or young person, and was sentenced to detention.

  6. (4) This section applies whether or not an appeal is pending against conviction or sentence.

  7. (5) In this section—

  8. ‘conviction’ includes—

    1. (a) a finding that a person is not guilty by reason of insanity;

    2. (b) a finding under section 4A(3) of the Criminal Procedure (Insanity) Act 1964 (cases of unfitness to plead) that a person did the act or made the omission charged against him; and

    3. (c) a conviction of an offence for which an order is made discharging the offender absolutely or conditionally;

      and ‘convicted’ shall be construed accordingly;

      ‘the relevant enactments’ means—

    4. (a) as respects England and Wales, section 91 of the Powers of Criminal Courts (Sentencing) Act 2000;

    5. (b) as respects Scotland, sections 205(1) to (3) and 208 of the Criminal Procedure (Scotland) Act 1995;

    6. (c)

      ‘relevant foreign offence’, in relation to a member State other than the United Kingdom, means an offence under the law in force in that member State.

  9. (5A) For the purposes of subsection (3B), a relevant foreign offence corresponds to another offence if the relevant foreign offence would have constituted that other offence if it had been done in any part of the United Kingdom at the time when the relevant foreign offence was committed.

Keynote

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

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

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

2.3.5.1 Condition of Detained Person and Communication of Refused Bail

A detained person should be informed of the bail decision as soon as it is made. This can be delayed if the conditions set out in PACE Code C, para. 1.8 apply, in which case the detainee should be informed as soon as practicable.

In reaching a decision as to whether a person should be refused bail the custody officer should consider whether the same objective can be achieved by imposing conditions to the bail, that is, for the person to appear at an appointed place at an appointed time. If conditions attached to a person’s bail are likely to achieve the same objective as keeping the person in detention, bail must be given.

In Gizzonio v Chief Constable of Derbyshire (1998) The Times, 29 April, Gizzonio had been remanded in custody in respect of certain charges which had not ultimately been pursued. Damages (for the wrongful exercise of lawful authority) were sought on the basis that the police had wrongly opposed the grant of bail. It was held that the decision regarding bail is part of the process of investigation of crime with a view to prosecution and so the police enjoyed immunity in that respect.

2.3.6 Grounds for Refusing Police Bail

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

  • the person’s name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished is his/her real name or address;

  • the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail;

  • in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him/her from committing an offence;

  • in a case of a person aged 18 or over, where a sample may be taken from the person under s. 63B (where there is a provision for drug testing in force for that police area and station), the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable the sample to be taken;

  • in the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him/her from causing physical injury to any other person or from causing loss of or damage to property;

  • the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him/her from interfering with the administration of justice or with the investigation of offences or of a particular offence;

  • the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his/her own protection; or

  • the person is charged with murder.

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

  • any of the requirements of paras (a) to (h) above, but in the case of para. (d) only if the arrested juvenile has attained the minimum age;

  • the custody officer has reasonable grounds for believing that the arrested juvenile ought to be detained in his/her own interests.

Keynote

Juveniles being detained ‘in their own interests’ means for their own welfare. The expression ‘welfare’ has a wider meaning than just ‘protection’ and might apply to juveniles who, if released, might be homeless or become involved in prostitution or vagrancy (Bail Act 1976, sch. 1, part I, para. (3)).

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

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

  • fail to surrender to custody, or

  • commit an offence while on bail, or

  • interfere with witnesses or otherwise obstruct the course of justice, whether in relation to him/herself or any other person.

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

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

  1. (a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it);

  2. (b) the character, antecedents, associations and community ties of the defendant;

  3. (c) the defendant’s record as respects the fulfilment of his/her obligations under previous grants of bail in criminal proceedings;

  4. (d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his/her having committed the offence or having defaulted;

  5. (e) if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the risk that the defendant may do so by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant, as well as to any others which appear to be relevant. This includes domestic violence where a person is associated with the accused within the meaning of the Family Law Act 1996, s. 62.

Where bail is refused, the custody officer must inform the detained person of the reasons why and make an entry as to these reasons in the custody record (s. 38(3) and (4)).

In relation to juveniles, Article 37(b) of the United Nations Convention on the Rights of the Child 1989 requires that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used as a measure of last resort and for the shortest appropriate period of time.

2.3.7 Custody Officer: Granting Bail

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

2.3.7.1 General Provisions

Section 3 states:

  1. (1) A person granted bail in criminal proceedings shall be under a duty to surrender to custody, and that duty is enforceable in accordance with section 6 of this Act.

  2. (2) No recognizance for his surrender to custody shall be taken from him.

  3. (3) Except as provided by this section—

    1. (a) no security for his surrender to custody shall be taken from him,

    2. (b) he shall not be required to provide a surety or sureties for his surrender to custody, and

    3. (c) no other requirement shall be imposed on him as a condition of bail.

  4. (4) He may be required, before release on bail, to provide a surety or sureties to secure his surrender to custody.

  5. (5) He may be required, before release on bail, to give security for his surrender to custody. The security may be given by him or on his behalf.

  6. (6) He may be required to comply, before release on bail or later, with such requirements as appear to the court to be necessary to secure that—

    1. (a) he surrenders to custody,

    2. (b) he does not commit an offence while on bail,

    3. (c) he does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person,

    4. (ca) for his own protection or, if he is a child or young person, for his own welfare or in his own interests.

  7. (7) If a parent or guardian of a person under the age of seventeen consents to be surety for the person for the purposes of this subsection, the parent or guardian may be required to secure that the person complies with any requirement imposed on him by virtue of subsection (6) . . . above but—

    1. (a) no requirement shall be imposed on the parent or the guardian by virtue of this subsection where it appears that the person will attain the age of 17 before the time to be appointed for him to surrender to custody, and

    2. (b) the parent or guardian shall not be required to secure compliance with any requirement to which his consent does not extend and shall not, in respect of those requirements to which his consent does extend, be bound in a sum greater than £50.

Keynote

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

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

2.3.7.2 Custody Officer: Conditions of Bail

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

  1. (5) Where a constable grants bail to a person no conditions shall be imposed under subsections (4), (5), (6) or (7) of section 3 of this Act unless it appears to the constable that it is necessary to do so—

    1. (a) for the purpose of preventing that person from failing to surrender to custody, or

    2. (b) for the purpose of preventing that person from committing an offence while on bail, or

    3. (c) for the purpose of preventing that person from interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person, or

    4. (d) for that person’s own protection, or if he is a child or young person, for his own welfare or in his own interests.

Keynote

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

  • the accused is to live and sleep at a specified address;

  • the accused is to notify any changes of address;

  • the accused is to report periodically (daily, weekly or at other intervals) to his/her local police station;

  • the accused is restricted from entering a certain area or building or to go within a specified distance of a specified address;

  • the accused is not to contact (whether directly or indirectly) the victim of the alleged offence and/or any other probable prosecution witness;

  • the accused is to surrender his/her passport;

  • the accused’s movements are restricted by an imposed curfew between set times (i.e. when it is thought the accused might commit offences or come into contact with witnesses);

  • the accused is required to provide a surety or security.

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

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

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

The conditions outlined in this section can also be imposed by a constable granting bail elsewhere than at a police station under s. 30A(3B) of the Police and Criminal Evidence Act 1984.

2.3.7.3 Applications to Vary or Remove Bail Conditions

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

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

Keynote

Section 3A(5) (see para. 2.3.7.2) also applies on any request to a custody officer to vary or remove conditions of bail.

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

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

2.3.7.4 Police Bail: Surety

The Bail Act 1976, s. 8 states:

  1. (1) This section applies where a person is granted bail in criminal proceedings on condition that he provides one or more surety or sureties for the purpose of securing that he surrenders to custody.

  2. (2) In considering the suitability for that purpose of a proposed surety, regard may be had (amongst other things) to—

    1. (a) the surety’s financial resources;

    2. (b) his character and any previous convictions of his; and

    3. (c) his proximity (whether in point of kinship, place of residence or otherwise) to the person for whom he is to be surety.

Keynote

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

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

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

Where a court grants bail but is unable to release the person where no surety or no suitable surety is available, the court may fix the amount in which the surety is to be bound, and the recognizance of the surety may later be entered into before a police officer who is either of the rank of inspector or above or who is in charge of a police station, or other person as specified in s. 8(4) in conjunction with the Criminal Procedure Rules 2014, r. 19(14)(3)(b).

The normal consequence for a surety, where an accused fails to answer bail, is that he/she is required to forfeit the entire cash or security in which he/she stood surety. The power to forfeit recognizances is a matter for a court (Magistrates’ Courts Act 1980, s. 120).

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

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

2.3.7.5 Security

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

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

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

2.3.7.6 Acknowledging Bail

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

  • Triable on indictment

  • Seven years’ imprisonment

The Forgery Act 1861, s. 34 states:

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

Keynote

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

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

2.3.8 Detention of Juveniles After Charge

The Children (Secure Accommodation) Regulations 1991 (SI 1991/1505 as amended by SI 2012/3134) provide that a child who is detained by the police under s. 38(6) of the Police and Criminal Evidence Act 1984, and who is aged 12 or over but under the age of 18, must be moved to local authority accommodation unless the custody officer certifies it is impracticable for him to do so, or that no secure accommodation is available and local authority accommodation would be inadequate to protect the child or public from serious harm.

Where no secure accommodation is available and the serious harm criterion is met, the child can be kept in police detention. In R (On the Application of BG) v The Chief Constable of the West Midlands Constabulary [2014] EWHC 4374 (Admin) it was held that the police were fulfilling their responsibilities by investigating whether secure local authority accommodation was available even where there was no such accommodation available.

Where the detained child is aged 10 or 11, the police must move the child to local authority accommodation unless this is impracticable, e.g. in extreme weather conditions. The type of accommodation in which the local authority proposes to place the youth is not a factor which the custody officer may take into account in considering whether the transfer is acceptable.

The obligation to transfer a child to local authority accommodation applies equally to a child charged during the daytime as it does to a child to be held overnight, subject to a requirement to bring the child before a court in accordance with s. 46 of the 1984 Act.

Keynote

A police officer may arrest a juvenile without warrant if the juvenile has been remanded by a court to local authority accommodation and conditions were imposed, and the officer has reasonable grounds for suspecting that the juvenile has broken any of these conditions (Legal Aid, Sentencing and Punishment of Offenders Act 2012, s. 97(1)). Where a juvenile is arrested under this power he/she must be brought before a magistrate within 24 hours.

2.3.9 Live Link Bail

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

  1. (1) This section applies in relation to a preliminary hearing in a magistrates’ court.

  2. (2) Where subsection (3) or (4) applies to the accused, the court may give a live link direction in relation to his attendance at the preliminary hearing.

  3. (3) This subsection applies to the accused if—

    1. (a) he is in police detention at a police station in connection with the offence; and

    2. (b) it appears to the court that he is likely to remain at that station in police detention until the beginning of the preliminary hearing.

  4. (4) This subsection applies to the accused if he is at a police station in answer to live link bail in connection with the offence.

  5. (5) A live link direction under this section is a direction requiring the accused to attend the preliminary hearing through a live link from the police station.

  6. (6) But a direction given in relation to an accused to whom subsection (3) applies has no effect if he does not remain in police detention at the police station until the beginning of the preliminary hearing.

  7. (6A) A live link direction under this section may not be given unless the court is satisfied that it is not contrary to the interests of justice to give the direction.

Keynote

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

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

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

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

A person who fails to answer to live link bail or leaves the police station at any time before the beginning of proceedings in relation to a live link direction may be arrested (for s. 46A of the Police and Criminal Evidence Act 1984 see para. 2.3.3.3).

2.3.9.1 Searches of Persons Answering to Live Link Bail

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

  1. (1) A constable may search at any time—

    1. (a) any person who is at a police station to answer to live link bail; and

    2. (b) any article in the possession of such a person.

  2. (2) If the constable reasonably believes a thing in the possession of the person ought to be seized on any of the grounds mentioned in subsection (3), the constable may seize and retain it or cause it to be seized and retained.

  3. (3) The grounds are that the thing—

    1. (a) may jeopardise the maintenance of order in the police station;

    2. (b) may put the safety of any person in the police station at risk; or

    3. (c) may be evidence of, or in relation to, an offence.

  4. (4) The constable may record or cause to be recorded all or any of the things seized and retained pursuant to subsection (2).

  5. (5) An intimate search may not be carried out under this section.

  6. (6) The constable carrying out a search under subsection (1) must be of the same sex as the person being searched.

Keynote

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

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

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

Designated detention officers, as well as constables, can use the powers in ss. 54B and 54C to search and seize. Where a detention officer exercises the power to seize things found pursuant to a search the officer must deliver the things seized to a constable as soon as practicable and in any case before the person from whom it was seized leaves the police station (Police Reform Act 2002, sch. 4, part 3, para. 27A).

Section 46A(1ZB) (see para. 2.3.3.3) provides a constable with a power of arrest for defendants who attend the police station to answer live link bail but refuse to be searched under s. 54B.

2.3.10 Liability to Arrest for Absconding or Breaking Bail Conditions

The Bail Act 1976, s. 7 states:

  1. (1) If a person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court fails to surrender to custody at the time appointed for him to do so the court may issue a warrant for his arrest.

  2. (1A) Subsection (1B) applies if—

    1. (a) a person has been released on bail in connection with extradition proceedings;

    2. (b) the person is under a duty to surrender into the custody of a constable; and

    3. (c) the person fails to surrender to custody at the time appointed for him to do so.

  3. (1B) A magistrates’ court may issue a warrant for the person’s arrest.

  4. (2) If a person who has been released on bail in criminal proceedings absents himself from the court at any time after he has surrendered into the custody of the court and before the court is ready to begin or to resume the hearing of the proceedings, the court may issue a warrant for his arrest but no warrant shall be issued under this subsection where that person is absent in accordance with leave given to him by or on behalf of the court.

  5. (3) A person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court may be arrested without warrant by a constable—

    1. (a) if the constable has reasonable grounds for believing that person is not likely to surrender to custody;

    2. (b) if the constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions; or

    3. (c) in a case where that person was released on bail with one or more surety or sureties, if a surety notifies a constable in writing that that person is unlikely to surrender to custody and that for that reason the surety wishes to be relieved of his obligations as a surety.

Keynote

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

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

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

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

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

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

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

2.3.11 Offence of Absconding by Person Released on Bail

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

  1. (1) If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody he shall be guilty of an offence.

  2. (2) If a person who—

    1. (a) has been released on bail in criminal proceedings, and

    2. (b) having reasonable cause therefor, has failed to surrender to custody, fails to surrender to custody at the appointed place as soon after the appointed time as is reasonably practicable he shall be guilty of an offence.

Keynote

Section 6 applies where:

  • the police grant bail to a suspect to appear at the police station;

  • the police grant bail to a defendant to appear at court on the first appearance;

  • the court grants bail to the defendant to return to court at a later date.

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

A person who has ‘reasonable cause’ still commits the offence if he/she fails to surrender ‘as soon after the appointed time as is reasonably practicable’. Where an accused was half an hour late in appearing at court it was held that he/she had absconded (R v Scott [2007] EWCA Crim 2757). In Laidlaw v Atkinson (1986) The Times, 2 August, it was held that being mistaken about the day on which one should have appeared was not a reasonable excuse. Also, there is no requirement on the court to inquire as to whether a person arrested for failing to comply with bail conditions had any reasonable excuse for breaching bail (R (On the Application of Vickers) v West London Magistrates’ Court (2003) EWHC 1809 (Admin)).

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

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

2.3.12 Remands in Police Custody

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

  • for a period not exceeding three clear days (24 hours for persons under 18 (s. 91(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) (s. 128(7));

  • for the purpose of inquiries into offences (other than the offence for which he/she appears before the court) (s. 128(8)(a));

  • as soon as the need ceases he/she must be brought back before the magistrates (s. 128(8)(b));

  • the conditions of detention and periodic review apply as if the person was arrested without warrant on suspicion of having committed an offence (s. 128(8)(c) and (d)).