The Imperative of Formality: Police Discretion in Varying Pre-Charge Bail Surrender Arrangements under Article 48 PACE

1. Introduction

This commentary examines the Court of Appeal in Northern Ireland’s decision in Higgins v Chief Constable of the PSNI ([2025] NICA 19). The appellant, Patrick Higgins, was arrested for assault, released on pre-charge bail under PACE, and informed repeatedly—informally and sometimes retrospectively—that his “return” date to custody had been extended. After failing to attend on the original surrender date he was rearrested. Higgins challenged the lawfulness of the police practice of varying bail return dates outside the formal mechanisms in PACE. The High Court held that Article 48(1)(b) of PACE conferred an unfettered power on custody officers to choose or adjust surrender dates. On appeal, the Court of Appeal reversed, confining police power to the express statutory procedures.

2. Summary of the Judgment

The Court of Appeal allowed the appeal. It held that:

• Article 48(1)(b) PACE confers a power on a custody officer to appoint a single surrender time, date and place at the moment of release, but does not authorize informal, repeated or retrospective extensions of that appointment.
• Only the specific statutory gateways—Article 48(7) (waiver of attendance) and Article 48(8) (extension for unavoidable cause)—permit alteration of the surrender requirement, and then only within their narrowly drawn terms and formalities.
• No necessary implication can supply an unexpressed power to vary bail dates at will, because expressio unius and the principle of legality forbid such a broad, informal discretion that would imperil personal liberty without clear parliamentary authority.

3. Analysis

3.1 Precedents Cited

• Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591: Statutory words must be read in context.
• R (on the application of O) v SSHD [2022] UKSC 3: Emphasis on the text and purpose of statutes.
• R (Quintavalle) v Secretary of State for Health [2003] UKHL 13: Interpretation must give effect to legislative purpose.
• Barclays Mercantile Business Finance Ltd v Mawson [2004] UKHL 51: Modern approach requires purposive reading.
• Fothergill v Monarch Airlines [1981] AC 251: Courts are mediators between state power and citizens’ rights—statutes must be publicly ascertainable.
• R (Morgan Grenfell) v Special Commissioner of Income Tax: Distinction between reasonable and necessary implication.
• R (Simms) v SSHD [2000] 2 AC 115: Principle of legality presumes Parliament does not override fundamental rights without clear language.

3.2 Legal Reasoning

The Court’s reasoning can be distilled as follows:

1. Text and Context: Article 48(1)(b) speaks of an “appointment” of a single future time, date and place for surrender at the moment of grant of bail. It must be read alongside Articles 48(2A)–(3H), which impose detailed formal recording and notification requirements.
2. Express Statutory Variations: Only Articles 48(7)–(8) allow alteration of attendance obligations—and then by formal written notice or extension for illness/other unavoidable cause. Article 32B–32C govern “street bail.”
3. Expressio Unius: The statute enumerates four situations when bail surrender can be changed. Absence of a fifth implicit power indicates Parliament did not intend any further discretion.
4. Necessary Implication: No necessity existed to imply a broad power to defer surrender dates; convenience alone does not satisfy the high threshold of necessity required to imply a power not spelled out.
5. Principle of Legality: Informal or retrospective alteration of a suspect’s surrender duty interferes with personal liberty. Parliament must speak clearly before authorizing such interference; general language in Article 48(1)(b) cannot be stretched so far.

3.3 Impact

This decision will have significant consequences:

• It curtails the long-standing informal police practice of “pushing back” bail surrender dates without formal notice.
• Counsel and suspects will require strict adherence to the formal notice requirements in Article 48(7) and (8), or risk unlawful arrest under Article 47A.
• Police training and PACE Codes of Practice must be revised to reflect that any extension or waiver of bail surrender obligations must follow the precise statutory routes.
• It underscores the courts’ unwillingness to permit erosion of liberty by implied administrative practices, reinforcing the primacy of statute and formal procedure in policing powers.

4. Complex Concepts Simplified

• Police Bail (Pre-charge): Release from custody before charge, on condition of surrendering later at a police station.
• Article 48 PACE: Governs bail after arrest; sets out how and when a custody officer must record bail, impose conditions, and how attendance can be waived or extended.
• Necessary Implication: A power can only be implied if it is indispensable to achieve the expressed purpose of the statute—not merely convenient.
• Principle of Legality: Fundamental rights (e.g., freedom from arbitrary detention) cannot be overridden by vague or general words; clear statutory authority is required.
• Expressio Unius: Listing specific powers implies exclusion of unlisted powers.

5. Conclusion

In Higgins v Chief Constable of the PSNI the Court of Appeal has reaffirmed that personal liberty demands rigorous statutory formality. It rejected the notion that Article 48(1)(b) of PACE grants an open-ended power to custody officers to vary, informally or retrospectively, the bail surrender time, date or place. Only the narrow written-notice provisions in Articles 48(7) and (8) (and their counterparts in the “street bail” regime) permit such variations. This judgment safeguards the clarity and predictability of bail procedures, emphasizing that Parliament’s carefully drawn framework must not be displaced by administrative convenience.