Pre Charge Bail in Sexual Offence Cases: What You Need to Know

A person is holding a pair of handcuffs in their hands.

Being accused of a sexual offence in most cases will result in the suspect being made subject to bail conditions, which are imposed on them by the police and the court, depending on what stage of proceedings their case is at.

What is Bail?

Bail is a set of restrictions imposed on a suspect of a criminal offence to ensure they comply with a police investigation or the court process, and to also ensure that they appear back at the police or court when they are required to do so.

Bail Before Charge

To be placed on police bail you would have been arrested for a criminal offence. Most sexual offences are serious, and there is often the need to arrest a suspect to protect witnesses or to seize potential evidence such as clothing and/or electronic equipment.

The circumstances which may lead to a suspect being made subject to police bail are:

1. Where there is as yet insufficient evidence to charge a suspect and they are released pending further investigation (sections 34(2), 34(5) and 37(2) of the Police and Criminal Evidence Act 1984 (PACE)

2. Where the police consider that there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision (s.37(7)(a) PACE).

3. Where it is no longer necessary to detain a suspect to secure or preserve evidence or obtain it by questioning, yet the police are not in a position to charge, the suspect must be released, but it is open to the police to release them on bail or without bail where there is a need for further investigation of any matter for which he was detained.

Bail cannot be placed on a person who attends the police station voluntarily.

When the police impose bail, this is referred to as pre-charge bail, it must only be imposed where it is necessary and proportionate to do so. When considering necessity and proportionality the police must have regard to the following factors:

(a) The need to secure that the person surrenders to custody.

(b) The need to prevent further offending by the person.

(d) The need to safeguard the suspect.

(e) The need to manage risks to the public.

In addition, and where it is practicable to do so, investigators should seek the complainant's views on bail and possible bail conditions.

It is easy for the police to relate a sexual offence to each of the above and therefore, establishing a necessity is not difficult in theory. However, each reason for bail must be carefully examined as although the officers may assume risk due to the nature of the offence, the laws set by the courts may differ.

Example – Indecent Images of Children and Police Bail

At Eventum Legal we have many clients approach us who are made subject to bail conditions when suspected of committing offences which relation to the making, possession and/or distribution of indecent images of children. Bail conditions usually relate to their contact with children under the age of 18, this is usually prohibited completely or allowed only with a supervising adult who is aware of the allegations. The reason for such a restriction is to protect children, a specific group of the public. Although this may seem reasonable to the police, what the law says is different.

The law

It is important to note, that when a person is arrested, they are a suspect, and it has not been proven that a criminal offence has been committed. The investigation for any sexual offence, particularly an alleged image offence is likely to go on for a significant period of time as the forensic examination can cause delays.

Image offences are not contact offences, a person who is suspected of being in possession of, making or distributing illegal imagery or videos is not under arrest for child sexual abuse and therefore, this questions the proportionality of restricting contact with children, and this is exactly the basis on which an application should be made to the court when seeking to vary this condition.

Key Case Law

The case of R v Smith and oths [2001] EWCA Crim 1772 is a key piece of law that assists defence lawyers challenging the lawfulness of contact prohibitive conditions in an image case. Although the case relates to contact conditions imposed by way of a Sexual Harm Prevention Order (SHPO), the same principles apply to police and court bail. The principle being that it is not necessary nor proportionate to impose contact restrictions in case concerning indecent images offences. Our lawyers have a 100% success rate in achieving a variation of bail in such cases.

Other Sexual Offence Cases and Police Bail

Most bail conditions in cases concerning false allegations of rape, historic sexual offences, or sexual assault will relate to contact with the complainant and any other prosecution witnesses. They may also extend to restricting travel, restricting your ability to go to a certain house or area, and they may also restrict you from carrying out your work.

Applying to Vary Pre Charge Bail

All bail conditions are able to be challenged, but there must be strong grounds to do so. The first step would be liaise with the officer in charge of the investigating the allegations, and ask them whether they agree to vary the conditions and explain the reasons why with any supporting applicable law.

If the officer in charge does not agree, then an application to the Magistrates Court can be made.

Bail Time Limits

In cases to which bail time limits apply it is for the police to monitor and extend those periods according the law, including making applications to the court where necessary. The table below explains the pre charge bail periods, and when the police are required to make an application to the court to further increase a suspects bail time.

A blue and white chart with numbers and words on it

The initial bail period of 3 months is authorised by the custody sergeant and a further 6 months can be authorised by the police Superintendent. Any further extensions must then be applied for by the police to the Magistrates court. It is not unusual for investigations relating to sexual offences to require a further extension beyond that of what the police have the powers to authorise.

When the police make an application to the Magistrates Court you and your lawyer will be provided with the application so that any response can be provided. The police application will detail the work that has been carried out by the police and what is outstanding to be completed by them. When challenging a bail extension we must consider the circumstances as to why the application is being made and determine whether a further extension is justified. The police must be seen to be investigating the allegations against you expeditiously, and no delays should be caused by their inability to effectively and promptly follow reasonable lines of enquiry.

How We Can Help You

If you have been made subject to bail conditions due to an allegation of a sexual offence or an offence arising from a domestic incident, please contact our lawyers to discuss any concerns you have, or if you feel that the conditions are particularly harsh and unfair. It may be that you cannot live at home with your family, see your children or, attend your place of work. All restrictions that can have a devastating consequence on your personal and professional life.

Our lawyers will listen to your concerns, discuss the allegations and circumstances of it with you and provide you with advice on how we may be able to challenge your bail conditions, with our aim to be able to allow you to continue life as normally as possible whilst under investigation.

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By Jessica Wilson • April 22, 2025

Has your case been listed for pre-trial review? Are you concerned about what the hearing may entail? Our team have put together this short fact sheet which provides some guidance as to why a pre-trial review may be listed and what happens in the courtroom. Pre-trial reviews are not always necessary, however in cases which may have complex issues, be anticipated to be lengthy trials, or issue have arisen during trial preparation between the parties, then a pre-trial review is likely to be required. What is a Pre Trial Review? A pre-trial review is exactly what the name suggests, it is an opportunity for the court review the case prior to trial. The judge will ensure that both parties have met previous directions set by the court, and that there is no outstanding issues or reasons which may cause a delay to the trial. If there are any issues that have arisen between the parties they will be aired and the judge, where required, may set directions to the prosecution and defence with the aim being to resolve the problems, and to enable trial to begin and run effectively. Issues that can arise during trial preparation may include: 1. Applications to introduce bad character , this can be of the defendant or any other trial witnesses. 2. Applications to introduce hearsay evidence 3. Problems with witnesses 4. Delays caused by either part, where material should have been served and hasn't. 5. Applications for disclosure of documents which the defence may need and they are being withheld. Do I need to attend my pre-trial review? Yes, the defendant in a case is almost always required to attend their pre-trial review. It can also be useful for the defendant's attendance so that they can remain fully involved and aware of the process and decisions being taken in their case. You will not be asked any questions at the hearing but the judge may wish for you to acknowledge the outcome of the hearing and directions set, particularly if there is work for the defence team to carry out. Will my barrister attend my pre-trial review? You must always be represented at any court hearing. Our team take great pride in our meticulous preparation for all court hearings and your barrister would be instructed to attend your pre-trial review, with a detailed brief which would detail any issues we have with the prosecution or delays that are affecting our ability to prepare for trial. Do my witnesses have to attend my pre-trial review? No, your witnesses do not have to attend your pre-trial review. No evidence will be heard during the hearing, it is to establish readiness for trial only, resolve issues that could potentially cause delays, and to give the court confirmation that the current date listed for trial will be able to remain. How long does a pre-trial review hearing take? How long a pre-trial review hearing takes depends on the nature of the case and whether any issues require addressing by the judge. The court will usually want to process pre-trial review hearings quickly, and in sexual offence or domestic abuse cases the hearings can last anywhere from 10 minutes to one hour. How Eventum Legal can help Our team take a meticulous approach to trial preparation and will always be alert to any issues that could affect your case. We take a no stone unturned approach and we are not afraid to challenge decision of the CPS at hearings before the courts. We have select barristers which we work regularly with when defending sexual and domestic violence cases so you are provided with a strong and experienced team who are dedicated thorough preparation and presentation of your case. If you have a pre-trial review hearing approaching and are unrepresented, or feel that your current legal team are not making the progress required then contact us for a free initial consultation where we will assess your case, circumstances and the future of any court hearings.