Correct on the date of publication - 6 January 2025

Question: 

A suspect was previously arrested and is now on bail, due to there not being enough evidence, but several lines of enquiry. There is now further evidence and another interview with the suspect is required, but they are not due to answer bail for several weeks.

Can a voluntary interview be conducted with a suspect who is on bail? Would it be a breach of PACE to conduct an interview in these circumstances?

Answer:

A person should not be brought in for a voluntary interview in relation to the offence for which they are on bail. Although there is not an express prohibition to this within the legislation, it is generally considered to be circumventing the PACE provisions in relation to custody clock and could leave you open to challenge.

It appears from the circumstances provided that there are two options as to how to proceed.

Option One

If a further interview is required regarding existing or new evidence, this may take place when the suspect answers their bail, and the custody officer can bring the bail date forward if required. The custody officer may amend the bail date if necessary under section 47(4A) of PACE and the suspect must be notified in writing (subsection (4B)). The bail date must be within the Applicable Bail Period.

Once they have arrived at the police station having answered their bail, they are then back under arrest and in police detention and can be interviewed - this is not a voluntary interview. They can then be charged, or the matter disposed of accordingly.

Option Two

Alternatively, where there is fresh evidence, a suspect can be re-arrested while on bail. Section 47(2) of PACE states that where a person is released on bail to return to a police station, they may be re-arrested if new evidence comes to light before the time when they should answer their bail. When arresting on fresh evidence, an arrest must be necessary, in line with section 24 of PACE and paragraph 2.9 of PACE, Code of Practice G.

What constitutes fresh evidence will be facts specific to an individual case. What is important is that the evidence is new because the investigator is now in possession of information which is presentable to a court – i.e. it is admissible – which they were not in possession of a the time of the suspect’s initial detention. See further - Legal Q&A: Arrest - new evidence after suspect’s release for guidance on what may constitute new evidence after a suspect’s release.

One of the consequences of such a re-arrest is that the relevant time commences from zero and any previous period spent in police detention during an earlier arrest for that offence has no effect on the new relevant time. If there is new evidence, but the suspect is allowed to answer their bail and is not arrested before that point in time, once they have surrendered to their bail it is too late to arrest them for new evidence. In that case, previous time spent in detention will count – in other words the original clock will resume.