Pre Charge Bail in Sexual Offence Cases: What You Need to Know
Pre Charge Bail in Sexual Offence Cases: What You Need to Know
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.
(c) The need to safeguard victims and witnesses.
(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.
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.
We Can Help With
Have you been charged with indecent image possession? Do you want to know how many cases get dropped? Read our latest article to learn more.
Understanding the difference between “consent” and “reasonable belief” can be key if you are being investigated or prosecuted for a sexual offence, where these two issues can arise. These are not just technical legal terms; they are real-world concepts that can affect the outcome of serious sexual abuse cases. At Eventum Legal, our aim is to help people grasp these important ideas so that they know where they stand, whether they’re seeking justice, facing an accusation, or just wanting to be informed. Consent and the Law: What Does It Mean? When it comes to sexual activity, the law makes it very clear that “consent” isn’t just about saying yes or no. Consent means agreeing by choice, having the freedom and capacity to make that choice, and being able to change your mind at any time, even if the sexual activity has begun. The Sexual Offences Act 2003 states that a person consents if they agree by choice and have the freedom and capacity to do so. In practical terms, this means no one should be pressured, forced, or tricked into sex. If someone is too drunk, too scared, or otherwise unable to decide, they cannot legally give consent. This applies also to issues with mental capacity where someone may not have the understanding or ability to give informed consent. When establishing whether consent or reasonable belief applies, the courts examine everything that happened, how the people involved acted, what was said, their relationship, and whether any threats were made. It’s not about just hearing a yes or no, but about whether the agreement was truly given, freely and knowingly, at the time. Reasonable Belief: The Other Side of the Coin While “consent” focuses on the person on the receiving end of sexual activity, “reasonable belief” is about the perspective of the person accused of the crime. UK law says it’s not enough for someone to claim they thought the other person was consenting. The belief that consent existed must be reasonable; it must meet the standard of what a reasonable person would think in those circumstances. This comes down to two questions: did the accused genuinely believe the other person was consenting, and would a reasonable person, knowing what the accused knew and considering everything that happened, have reached the same conclusion? It’s not a defence to say, “I just thought it was okay,” if evidence, actions, or common sense didn’t back that belief up. Courts look at whether the accused checked for consent, paid attention to what was happening, and took steps to make sure everything was agreed upon. How the Law Applies These Concepts The distinction between consent and reasonable belief matters because everyone is responsible for ensuring that consent is present, not just assuming or hoping it is. The prosecution in a sexual offence case has to prove that there was no consent or that the accused did not have a reasonable belief that consent existed. To judge this, courts examine the context: Were both people sober and able to make decisions? Was there clear, positive agreement? Did one person ignore signs of hesitation or discomfort? In cases where someone is very intoxicated or unable to communicate, the law presumes that there is no consent, and it is challenging for anyone to claim a reasonable belief otherwise. However, where alcohol is in question the issue can become complex as we all have difference alcohol tolerances, what may be too drunk to one person, could be different to the other. Therefore, working to establish the intoxication and affect is crucial for lawyers in some cases. In cases where it can be proven that that someone was too drunk to speak or move, and the accused says they thought there was consent just because the person didn’t say “no,” the court is unlikely to accept that as reasonable. The law expects people to check in with their partner, look for positive signs, and stop if there’s any doubt. Clearing Up Common Myths Many misunderstandings exist about how consent and reasonable belief work in real life. One myth is that if someone doesn’t say “no,” they must have agreed. The absence of a “no” is not the same as a “yes.” Another myth is that if two people are in a relationship or have had sex before, consent is always assumed. Every sexual act requires consent, every time. Some people also believe that as long as they honestly thought there was consent, that’s enough. But the law sets a higher bar: the belief has to be reasonable, meaning it must be backed up by what happened and what a reasonable person would think. In our digital age, misunderstandings can easily happen through text or online communication. Courts are aware of this and look at all available evidence, including messages and social media, to determine what happened. Other avenues of evidence exploration can include CCTV footage and witnesses. Why These Legal Standards Matter The way UK law approaches consent and reasonable belief has changed over time. In the past, people could argue they had an “honest” belief in consent, even if it wasn’t reasonable. That changed with the Sexual Offences Act 2003, which now requires honesty and reasonableness. This protects people from harm and ensures that the law takes the experiences and choices of everyone involved seriously. These rules are designed to keep people safe and ensure everyone’s rights are respected. The law encourages open communication, respect, and responsibility. It expects everyone to look for clear signs of agreement and to stop if there is any doubt or hesitation. What To Do If You’re Involved In A Sexual Offence Case Suppose you’re facing a situation involving consent or reasonable belief and you as the accused want to prove that either of these legal requirements existed, then you must seek legal advice and engage with specialist lawyers who can navigate the complexities of the key legal issues in sexual offence cases. These cases can be stressful and complex, and every detail matters: what was said, what was done, and what steps were taken to ensure everyone agreed. At Eventum Legal, we specialise in helping people understand their rights and responsibilities. We listen, explain your options in straightforward language, and support you throughout the process, always with respect and confidentiality. Whether you’re seeking justice, defending your reputation, or simply want to know your rights, we’re here to help. Frequently Asked Questions What is the difference between consent and reasonable belief? Consent is when a person freely agrees to a sexual act. Reasonable belief is whether the accused genuinely and reasonably believed that consent was given, based on all the facts. Can someone be convicted if they misunderstood consent? Yes, if their belief in consent wasn’t reasonable. The court looks at the whole situation, not just what the accused thought. How can I protect myself or prove consent? Open communication and ensuring everyone is comfortable and willing are the safest approaches. If you’re worried about misunderstandings, keep records of conversations. Where can I get help or advice? Contact Eventum Legal for confidential, expert support tailored to your needs.
Have you been accused of breaching your SHPO, maybe by accident or knowingly? Speak to our specialist team.
