Part 2 · Chapter 10
Charge, Bail and Release
The legal status, restrictions and unfinished work after custody
Decision → Status → Terms → Unfinished work → Action → Review
1. Custody ends with a decision, not an explanation
The cell door opens because a legal decision has been made. That decision may begin criminal proceedings, continue the investigation under bail, continue it without bail, or end it on the present evidence. The physical event is the same: the client leaves custody. The legal position is not.
For the client, the first question is usually, “Am I going home?” The defence must answer six: What decision was made? What status now applies? What terms govern the client? What remains unfinished? What should happen next? When will the position be reviewed?
| Outcome | Legal position | Immediate effect | Defence priority |
|---|---|---|---|
| Charge | Proceedings begin | Court attendance; police or court bail, or detention for first appearance | Charge particulars, court, bail case and immediate disclosure |
| Pre-charge bail | Investigation continues | Return obligation; conditions may apply; statutory bail-period controls | Necessity, proportionality, conditions, outstanding work and expiry |
| Release under investigation | Investigation continues | No police-bail return date or bail conditions | Preservation, contact protocol, progress reviews and unresolved collateral risk |
| No further action | Present investigation ends without charge | No bail obligation | Written confirmation, reason where material, property, records and wider consequences |
2. The custody-exit audit
- Decision. Obtain the precise outcome: charge, pre-charge bail, release under investigation, no further action or another disposal or process.
- Status. Establish whether the person is now a defendant, remains an uncharged suspect or has been told that the present investigation has ended.
- Terms. Check every court date, police return obligation, condition, prohibition, exception and warning in the written documents.
- Unfinished work. Identify further enquiries, forensic results, devices, witnesses, charging advice, property and any proposed further interview.
- Action. Decide what must be preserved, clarified, varied, represented upon or referred for connected professional advice.
- Review. Set the next date and event that will trigger reconsideration. Do not allow uncertainty to become an unmanaged condition.
The client should leave with the documents, the status, the rules, the immediate advice and the next contact point - not merely the word “released”.
3. Who decides whether to charge?
The custody officer has statutory duties concerning whether there is sufficient evidence to charge and whether detention or release remains justified. The ultimate charging decision may be made by the police, the Crown Prosecution Service or another prosecutor, depending on the offence, anticipated plea, complexity and applicable charging arrangements.
Those functions should not be compressed into one question. Investigators may believe the allegation is true. The custody officer may conclude that detention can no longer continue. A prosecutor may still need to decide whether the legal test for charge is met. None of those decisions determines guilt.
4. The Full Code Test
Prosecutors ordinarily apply two stages. At the evidential stage, there must be sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. That is an objective assessment of admissibility, reliability, credibility and the effect of any defence or other material the suspect has put forward or may rely upon. It means that an objective, impartial and reasonable tribunal, properly directed, is more likely than not to convict. It is not the trial standard of proof.
Only if the evidential stage is met does the prosecutor decide whether a prosecution is required in the public interest. Seriousness, culpability, harm, the circumstances of the victim, age and maturity, community impact, proportionality and suitable alternatives may matter. The public-interest stage is structured judgment, not an invitation to substitute sympathy for evidence.
What legal proposition must be proved, what admissible material supports it, what defence or alternative explanation must be assessed, and what public-interest factor is genuinely case-specific?
5. The exceptional Threshold Test
In limited cases a prosecutor may charge before the Full Code Test is met. The Threshold Test is not a generally lower charging standard. All five conditions must be satisfied: there must be reasonable suspicion; identifiable further evidence capable of producing a realistic prospect of conviction; seriousness or circumstances justifying an immediate charge; substantial grounds to object to bail; and a public interest in charge.
The expected evidence must be identified and obtainable within a reasonable period. The decision must be kept under review, and the Full Code Test applied as soon as the anticipated material is received or otherwise as soon as reasonably practicable. Prediction is not evidence. If the predicted material fails to arrive or does not strengthen the case, the prosecution must reassess both charge and opposition to bail.
7. Release or detention after charge
After charge, the custody officer must decide whether the defendant should be released to attend court or detained for the first court appearance under the statutory framework. Relevant grounds may include failure to surrender, further offending, interference with witnesses or obstruction of justice, uncertain identity or address, protection of the defendant and specified safeguarding concerns. Seriousness informs risk; it does not by itself answer the bail question.
If police bail is granted after charge, any conditions should address a recognised risk and be clear, proportionate and workable. Once the defendant appears in court, future bail is governed by the court process. Evidence of address, employment, caring duties, health, previous compliance and workable safeguards should be assembled before the first hearing, not improvised in the courtroom.
8. Pre-charge bail
Pre-charge bail allows an uncharged suspect to leave custody while the investigation or charging process continues. It creates a duty to return at a specified time or as required, and it may carry conditions. Since the 2022 reforms, the law adopts a neutral position between bail and release without bail: the custody officer must be satisfied that bail is necessary and proportionate in all the circumstances, taking account of any proposed conditions and the suspect’s representations.
The relevant needs include securing surrender, preventing offending, safeguarding victims and witnesses, safeguarding a vulnerable suspect and managing risk to the public. Conditions may also address interference with witnesses or obstruction of justice under the applicable powers. Bail is an investigative control, not punishment for an unproved allegation.
9. Testing every proposed condition
| Test | Question |
|---|---|
| Identified risk | What specific future event is the condition intended to prevent? |
| Evidence | What facts, not merely the allegation, support that risk? |
| Connection | How does this term actually reduce that risk? |
| Least restriction | Could a narrower term or defined exception achieve the same protection? |
| Workability | Can the client comply alongside housing, work, health, children and existing orders? |
| Clarity | Are place, person, route, indirect contact, time and exceptions defined? |
| Review | What change or date should trigger variation or removal? |
The practical effect should be identified before release. Exclusion may produce homelessness. Non-contact may intersect with children, employment or family proceedings. Reporting may conflict with disability or work. A passport condition may affect a livelihood. These consequences do not automatically defeat a condition; they allow the decision-maker to compare a narrow, workable safeguard with a broad restriction.
The written term governs. A client should not assume that contact is permitted because the other person initiated it, that a friend may pass on a message, or that a sensible reason creates an unwritten exception. A genuine problem should be resolved by urgent variation, not private reinterpretation.
10. Bail periods, extensions and representations
For a standard police case, the initial applicable bail period is ordinarily three months. An inspector may authorise extension to six months and a superintendent may authorise extension to nine months if the statutory conditions are met. Further extensions ordinarily require a magistrates’ court. Different initial periods and decision-makers apply in designated cases involving bodies such as the SFO, FCA, HMRC and NCA.
These are not automatic allowances. Before an extension, the decision-maker must address continuing suspicion, the need for further time, diligent and expeditious progress, and whether bail remains necessary and proportionate. The suspect or legal representative must be given an opportunity to make representations for police extensions.
The expiry calculation is technical. The applicable bail period begins under the statutory scheme and may be affected where a case is sent to the CPS for a charging decision or returned for further work. The date on a simplified three-six-nine month timeline should never replace checking the notice and statutory calculation in the individual case.
Ask what work remains, when it was commissioned, what has been completed, why further time is necessary, whether the investigation has been diligent, and whether each condition still addresses a current risk.
11. Answering bail, failing to surrender and alleged breach
A person on police bail must attend as required. The return may produce charge, no further action, further interview, varied conditions, an extension, RUI or another bail date. The solicitor should clarify the likely purpose beforehand and prepare for the substantive possibility, not treat the attendance as administration.
Failure without reasonable cause to surrender to police bail is an offence under section 6 of the Bail Act 1976 and may lead to arrest. If attendance becomes impossible, the client should contact the police and solicitor immediately and preserve evidence of the reason.
Breach of a pre-charge bail condition is ordinarily not a separate offence merely because the condition was broken. Police have a power to arrest a person reasonably suspected of breach; any separate conduct such as harassment, intimidation or obstruction may itself constitute an offence. On a section 46A arrest, a three-hour pause may apply alongside any time remaining on the original detention clock. The pause is a processing rule, not permission for punitive detention.
12. Release under investigation
Release under investigation, or RUI, means release without charge and without pre-charge bail while the case remains open. There is no police-bail return date and no police-bail condition. The person remains a suspect and may later be contacted, interviewed, charged or told that no further action will be taken.
RUI removes formal restriction but can remove structure too. That may be entirely appropriate where bail is unnecessary. For the client, however, no date may exist by which employment, travel, regulation, property or reputation will be resolved. The defence should replace the missing bail date with its own proportionate review cycle.
- Record the investigating officer, reference and reliable contact route.
- Identify time-sensitive CCTV, messages, records and witness information immediately.
- Set a first review date linked to the known enquiry rather than sending automatic weekly demands.
- Ask focused questions: work completed, work outstanding, forensic timetable, charging advice and retained property.
- Review whether a further interview or evidence-led representation has become appropriate.
- Keep the client’s professional, safeguarding, health and practical consequences under review.
Official statutory guidance expects documented supervisory review of RUI investigations at least every 30 days and updates to the suspect and legal representative where applicable. That does not guarantee a decision every month. It provides a disciplined reference point where the case is simply disappearing into silence.
13. Informal advice is not a bail condition
After RUI, an officer may advise the client not to contact a complainant or witness. That should be taken seriously but described accurately. It is not a police-bail condition. Contact may nevertheless generate a new allegation, affect evidence, appear intimidating or obstructive, breach another order, or lead police to reconsider bail and safeguarding measures.
Advice should therefore answer the real-life problem: what to do if the other person makes contact; how children, work or property will be managed; whether communications should pass through solicitors; and how incoming messages should be preserved. Legal accuracy does not require strategic recklessness.
14. No further action
A no-further-action decision ordinarily means that the police or prosecutor will not proceed on the evidence and circumstances then available. It is the most favourable immediate outcome, but it is not a judicial declaration of innocence, a finding that the allegation was fabricated, or an absolute legal bar to reopening if significant new evidence emerges.
The defence should obtain written confirmation and, where the reason has material professional or reputational consequences, seek an accurate explanation. The end of the case should also trigger review of seized property, data copies, biometric material, confidentiality measures, safeguarding records and any external process. None of those issues is necessarily resolved by the three letters “NFA”.
15. The urgent post-release defence window
Custody may end before the most valuable defence work begins. Evidence is still capable of disappearing, memories of changing and digital systems of overwriting. The first task is preservation, not advocacy. Full messages, CCTV, access records, vehicle data, work rotas, receipts and legitimate account records may need to be secured lawfully.
The client must not delete material, alter documents, pressure witnesses, access accounts without authority or coordinate accounts. Nor should everything be sent immediately to investigators without review. Preservation, collection, analysis and deployment are separate decisions.
The next chapters develop how a defence case is built and when investigators should receive material or representations. At this stage, the exit plan should identify only what cannot safely wait.
16. Wider consequences after release
Release may affect employment, regulation, safeguarding, housing, travel, insurance, family arrangements and health. The existence and timing of any reporting duty depend on the profession, contract, policy, allegation, restriction and connected regulatory regime. “Not charged” does not always mean “nothing to report”; equally, premature or inaccurate disclosure can cause avoidable harm. Specialist advice may be required.
Travel without a bail restriction is not automatically prohibited, but the client should remain contactable and able to respond to a lawful requirement. A retained passport, immigration rule, regulator, insurer or practical return date may create a separate issue. The correct answer comes from the actual restriction, not from the label attached to release.
17. When police make contact again
A friendly call after release may seek documents, access to a device, clarification, another sample, a further interview, attendance for charge or a bail change. The informational imbalance has not disappeared. The client should obtain the officer’s identity, purpose, deadline and asserted basis, then seek advice before making substantive comments or voluntarily supplying material.
A further interview is a fresh evidential decision. Updated disclosure, the first recording, new evidence, health and the earlier strategy must be reviewed. Previous answers do not compel further answers; previous silence does not make silence inevitable.
18. The final exit checklist
- Outcome: obtain the precise decision and confirm whether the person is a defendant, an uncharged suspect or no longer under active investigation.
- Documents: check charge, court or bail notices, dates, locations, offence wording, conditions and contact details.
- Compliance: explain each obligation, indirect contact, exceptions, travel and what to do if compliance becomes impossible.
- Investigation: identify the work said to remain, property held, further interview and charging route.
- Preservation: secure time-sensitive evidence lawfully and give express warnings against deletion, contact and improvised self-help.
- Action: prepare any urgent bail variation, safeguarding, property, employment, regulatory or health response.
- Review: place a real date in the diary and identify the event that will prompt the next strategic decision.
Custody ends when the state makes an exit decision. Strategy continues until the defence understands that decision, controls its consequences and prepares for the next one.
Legal source note
This chapter has been checked principally against the Police and Criminal Evidence Act 1984, including the current pre-charge bail provisions; the Bail Act 1976; the College of Policing pre-charge bail statutory guidance updated in June 2023; the Code for Crown Prosecutors; and the Director’s Guidance on Charging, sixth edition. The public guide states the ordinary framework rather than every exception. Bail-period calculations, non-standard cases, charging allocation and post-charge detention must be checked against the law and guidance in force when the decision is made.
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This material provides general information and is not a substitute for advice about a specific investigation or case.
Craig provides legal services exclusively through Forbes Solicitors. To make an initial enquiry, contact Craig at:
craig.mackenzie@forbessolicitors.co.uk
An enquiry does not constitute an instruction. Forbes Solicitors must confirm in writing that it has accepted the matter before any solicitor–client relationship arises.