Commentary on Sections Part 4: Charging Etc Section 28: Charging or release of persons in police detention
167.Section 28 introduces Schedule 2 which makes additional provision for the charging or release of people in police detention. It amends section 37 of the Police and Criminal Evidence Act 1984 and inserts new sections 37A-37D. New section 37A enables the Director of Public Prosecutions to issue guidance to which custody officers are to have regard in deciding whether, in cases where they consider that there is sufficient evidence to charge a suspect, they should release the suspect without charge but on bail, release him or her without charge and without bail, or charge him.
168.It is envisaged that the DPP’s guidance will set out the circumstances in which it will be appropriate for the police to charge or otherwise deal with a suspect without reference to the Crown Prosecution Service; this is likely to include minor cases (such as the majority of road traffic offences), cases where there is an admission by the suspect and which could be disposed of by the magistrates’ court, and cases where there is a need to bring the suspect before a court with a view to seeking a remand in custody. In other cases it will be appropriate for the police to release the suspect without charge but on bail while (as required by section 37B) the case is referred to the CPS.
169.Section 37B provides that, if a suspect is released without charge but on bail, it is then for the CPS to determine, if they agree that the evidence is sufficient, whether the suspect should be charged, and if so with what offence; or whether he should be given a caution (and if so in respect of what offence). The suspect is then to be charged, cautioned, or informed in writing that he is not to be prosecuted.
170.Section 37C makes provision for dealing with breach of any conditions attached to police bail granted pending the CPS decision as to charge. Paragraph 5 of Schedule 2 amends section 46A of the Police and Criminal Evidence Act 1984 to confer a power of arrest on reasonable suspicion that bail conditions have been broken. Paragraph 6(3) of that Schedule amends section 47(1A) of that Act to enable conditions to be imposed where a person is released on bail pending consultation with the CPS.