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Legal Minds

6 March 2017 / by / in ,

Bail Scrutiny Reforms – A missed opportunity?

Following on from his earlier article Proposed Reform of Pre-Charge Bail and its impact on Investigations into Financial Crime (May 2015), Steve Sharp contemplates the impact of the Police and Crime Act (2017) reforms of pre-charge bail which comes into effect on 3 April 2017.

As promised, the Government has decided to implement the reforms espoused by the then Home Secretary Theresa May back in May 2015. After a lengthy consultation period the reforms that are actually coming into force mirror very closely those proposed two years ago.

Key reforms

The relevant provisions are contained in sections 52-69 of the statute:

– There shall be a presumption of release without bail unless it is considered “necessary and proportionate” to do otherwise (s.50A);

– The presumption to release without bail does not apply where bail is granted to enable the CPS (or another prosecutor) to make a bail decision;

– Where the criteria for bail are met an inspector may authorise an initial 28 day period. This can be extended for a further 3 months in total by a Superintendent. Any further extension will be a matter for the Magistrates’ Court;

– In “designated cases” (most likely serious and complex fraud investigations) the bail can be extended up to a maximum of 6 months from the date of arrest before the matter is referred to the Magistrates’ Court. It is anticipated that most cases investigated by the SFO and the FCA will qualify as designated although it will be for the prosecuting agency to designate them as such;

– Whenever an extension of the time limit is sought the suspect or their representative must be given an opportunity to make representations.

What will be considered “necessary and proportionate”?

No guidance was given in the initial proposals and none is provided by the legislation. However, in deciding to grant an extension of the time period for bail, an authorising officer or a magistrate has to be satisfied on the following:

A. there are reasonable grounds to suspect that the suspect is guilty of the offence (authorising officer only;

B. further investigation is needed or further time for a police decision to charge is required;

C. the investigation or the charging decision is being conducted diligently and expeditiously;

D. release on bail is necessary and proportionate.

The Home Office resisted the temptation to be more prescriptive as to what is meant by “necessary and proportionate” preferring to leave this to the discretion of the authorising officer or magistrate. This is understandable given that every case will be different and some degree of flexibility is advisable. However, the failure to provide any guidance at all on the criteria to be applied for the imposition of bail conditions is regrettable. This was one of the four key consultation aims but it does not appear to have graduated beyond the consultative stage.

Likely impact on the investigation of fraud

I have not changed my view as to the likely impact of these reforms on fraud investigations. I said back in 2015 that I felt the major fraud investigators would continue to opt for treating suspects as “volunteers” for as long as possible rather than expose an investigation to the “bail clock” and external scrutiny. I see nothing in the new provisions to alter that opinion. Equally, I still feel that, on balance, suspects will prefer to be treated as volunteers to avoid the stigma and other disadvantages that being on bail involves. The only cases where the investigators seem likely to utilise these procedures will be where they already have a significant amount of evidence against the suspect (and thus should be able to reach a charging decision relatively quickly) and/or the suspect represents a significant flight risk and once out of the jurisdiction will prove difficult if not impossible to locate.

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Steve is a highly experienced criminal lawyer specialising in white collar and business crime for over 25 years. He has defended in cases brought by the Serious Fraud Office (SFO), HM Revenue and Customs, Department of Business Innovation and Skills (BIS), the Economic Crime Unit (ECU), NHS Counter-Fraud Service and the Crown Prosecution Service (CPS).