03 September 2021
Written by: Ruth Hartley, PNLD Legal Adviser
Not reviewed after the date of publication
The Policing and Crime Act 2017 introduced several legislative changes, including the concept of release under investigation without bail (RUI) to the Police and Criminal Evidence Act 1984 (PACE). The words ‘released under investigation or ‘RUI’ are not specifically stated/quoted in the legislation; rather the legislation simply refers to ‘released without charge’. The decision to release under investigation is provided in subsections 34(2)(a), 37(7)(b), 37(7A) and 37(8) of PACE. An individual released under investigation is regarded as being of the same status as a person released on bail, but without the requirement for them to return to the station on a specified date.
Whilst most officers are now more than familiar with this form of release, procedurally, the concept still generates a significant number of queries for PNLD, namely because many aspects relating to the release are not directly provided for within the legislation. PNLD Legal Adviser, Ruth Hartley, highlights some queries of interest received by PNLD, below.
Does RUI have to be reviewed and approved by an Inspector?
The RUI process must be capable of withstanding scrutiny and any decisions made as part of the process must be necessary and proportionate. However, whilst there are circumstances in the custody environment that do require the authority of an Inspector, there is nothing within PACE dictating that the authority of an Inspector is required before a suspect can be RUI.
Nonetheless, this does not necessarily prevent a force from implementing local policies with the intention of assisting officers and staff in fulfilling their responsibilities in the custody suite. The legislation merely dictates the minimum level of compliance that is required to comply with the legislation and therefore, it is within the remit of a force to implement a policy requiring additional levels of authority for certain offences and decisions.
Can a person released on bail have their status converted to RUI?
The Custody Officer may cancel bail by issuing a notice under section 47(4) of PACE and authorising a suspect to be RUI instead. However, caution should always be exercised in doing so, especially where the bail imposed has conditions attached. In making the change from bail to RUI it would be expected that consideration be given to the specific circumstances of each individual case. Changing a suspect from bail to RUI and therefore potentially removing any bail conditions, must be done for the right reasons, that bail is no longer necessary or proportionate, as per section 50A of PACE.
Can a person RUI have their status converted to impose bail?
Where a suspect has been RUI, it is PNLD’s view that bail can’t then be enforced, as the Bail Act 1976 cannot be used where the person is not in police detention for the specific offence, meaning bail cannot be granted under part IV of PACE. Furthermore, the preconditions for bail contained in section 50A of PACE cannot have originally been satisfied in such a case. As such, this holds the consequence that RUI cannot be converted to bail.
How do officers progress an investigation involving a suspect that has been RUI?
To take further action against an individual who is RUI, officers have to start the process of taking a prosecution forward, which could be done by issuing a postal charge or conditional caution, or by arresting on fresh evidence. However, PNLD are regularly asked to advise on whether an individual RUI can be voluntary interviewed or arrested solely for the purpose of charging. These matters are discussed further below.
Can a person RUI be voluntary interviewed?
There is nothing specifically stated in the legislation that prevents the voluntary attendance procedure being used at any time during the RUI process, given it is not subject to any time constraints. Otherwise, persons, RUI could only be interviewed again if they were re-arrested on fresh evidence, but it is accepted that there are situations where a person RUI will need to be questioned further about matters.
Should a suspect RUI be requested to attend a voluntary interview but then fail to attend, they could not be arrested due to that failure to attend. At this point, the only basis upon which an arrest could occur would be upon the basis of fresh evidence.
Following attendance and prior to interview, arrest may be considered in the following circumstances – as note 2G of Code G of PACE, stating:
‘2G When the person attends the police station voluntarily for interview by arrangement as in Note 2F above, their arrest on arrival at the station prior to interview would only be justified if:
new information coming to light after the arrangements were made indicates that from that time, voluntary attendance ceased to be a practicable alternative and the person's arrest became necessary; and
it was not reasonably practicable for the person to be arrested before they attended the station.
If a person who attends the police station voluntarily to be interviewed decides to leave before the interview is complete, the police would at that point be entitled to consider whether their arrest was necessary to carry out the interview. The possibility that the person might decide to leave during the interview is therefore not a valid reason for arresting them before the interview has commenced. See Code C paragraph 3.21.’
Despite the above, caution must be exercised when considering releasing a person as RUI, with a prior intention of then voluntary interviewing them, particularly if that person is nearing the end of the custody clock. Releasing them and conducting a voluntary interview in such circumstances could be seen as a way of bypassing the detention time limits. Additionally, if they then refuse to attend for the voluntary interview, you may struggle to progress the investigation.
Can officers arrest to charge a suspect RUI?
For an arrest to be lawful, it must be necessary. The grounds for arrest in PACE, Code of Practice G, paragraph 2.9 do not specifically refer to arresting for the purpose of charging, but some could apply to a case where the investigation is complete and you are in a position to charge. For example, paragraph 2.9(f) states that an arrest may be necessary to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.
Where the necessity criteria do not apply, and the person cannot be charged in person, alternative methods of progressing the case should be considered:
Issuing a ‘written charge and requisition’ or ‘written charge and single justice procedure notice’ under section 29 of the Criminal Justice Act 2003.
The argument that a person can still be arrested following RUI would also seem to be supported by the case of R (on the application of Iqbal) v Crown Court at Canterbury  EWHC 452 (Admin) where a suspect who had previously been RUI, attended Court in answer to a postal requisition and was then remanded into custody by the Magistrates Court, with the remand being upheld by Crown Court. Indeed, in the Appeal judgement Para 45 states:
‘… the Court was told that defence solicitors currently advise their clients that, if they are released under investigation and then receive a postal requisition, they will not be remanded in custody if they comply (and have in the past complied) with all attendance requirements, absent a material change in circumstances. If this is indeed a practice, there is no proper or principled basis for it. The full history and background will be taken into account by a court, as was the case here, but there can never be any guarantee of bail once a defendant is charged.’
In our view, it, therefore, seems to follow that if the court can have grounds to remand a person who was RUI, the police can equally arrest and detain such a person to charge, providing that one of the conditions set out in Code G, paragraph 2.9 is met. However, ultimately this is a matter that is ultimately up to the courts to decide.
As can be seen, this is a complex area of law, much of which is not specifically provided for in the legislation. In 2019, the government commenced a consultation on pre-charge bail and after collating responses from numerous parties, concluded that changes were needed to RUI. Despite this, the specific changes are yet to be agreed and finalised. It is however expected that some of those changes will be made under the Police Crime and Sentencing Bill. This will provide the College of Policing with new statutory powers to issue further guidance on pre-charge bail and RUI, that will be enshrined as best practice, with the intention of providing clarity on issues that are not presently directly provided for in the legislation.