The Law and Practice Relating to Court Bail

When the magistrates or crown court adjourn a case, it must be decided whether the defendant should be released on bail or remanded in custody. Releasing the defendant on bail is subject to a duty to surrender tot the court at a specific date and time for the recommencement of proceedings. The Bail Act 1976 governs the provision of court bail and gives the defendant a prima facie right to bail. In some circumstances is harder for the defendant to be granted bail because there is no presumption in favour of bail:

S 25 Criminal Justice Public Order Act: provides that where the defendant has been charged or convicted of murder, manslaughter or rape and has been previously convicted of these offences he should only be granted bail in ‘exceptional circumstances'.

Positive drug testing at the police station: s 19 (4) CJA 2003 if this has happened then bail will not be granted unless the court is satisfied there is no significant risk of the defendant offending. This would normally be the case if the defendant is over 18, tested positive for the presence of a Class A drug and charged with a Class A drug  related offence.

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Grounds for denying bail where the suspect is charged with an imprisonable offence are contained in Part1 Sch 2 of the Bail Act 1976. The prosecution needs to show that there are substantial grounds for believing the following:

  • Committing a further offence whilst on bail:  This provision states that bail will be granted if  the defendant is over 18  and already on bail unless there is no significant risk of the defendant committing an offence whilst on bail.
  • For own protection: the defendant poses a danger to himself or offence provokes public outcry e.g. child sex offences.
  • Defendant already serving a custodial sentence:  if the defendant is already serving a custodial sentence he cannot be granted bail for the new offence.
  • Insufficient detail:  there mat be insufficient details as to the suspects address and identity therefore the court or police would be reluctant to grant bail until this information is provided.
  • Absconding or breaking bail conditions: If defendant granted bail and fails to surrender or breaks any of the bail conditions he can be taken into custody and may be charged with a separate criminal offence of failing to surrender to bail
  • Post conviction:  that the defendant although convicted for an offence or has pleaded guilty, there are concerns that he will not cooperate with the probation service in the preparation of a pre sentence report because for instance there is no fixed address to which he can be bailed and contacted by probation.

Bail conditions as set out in S3 Bail Act 1976 include:

  • Reporting to a police station
  • Living at specified or alternative address
  • Surrendering a passport
  • Will surrender to custody
  • Does not interfere with witnesses
  • Avoid a particular area  or activity
  • Imposing a curfew
  • Surety- the court may require this before bail is granted. The person who acts a surety puts up a sum of money which they agree to forfeit in the event that the defendant does not attend court.  A surety is usually required where there are real concerns that the defendant will fail to surrender perhaps because of the links he has to foreign jurisdictions.

If bail conditions are broken a warrant will be issued for the arrest of the defendant who on arrest will  appear before  a magistrates court .The prosecution's likely objections to bail is that the defendant will abscond, interfere with witnesses or  commit further offences. It is usual that both the prosecution and defence will make submissions for and against the granting of bail based on the above factors. Part 9 of the Bail Act provides what the courts will take into consideration the following when determining the issue of bail:

  • The nature and seriousness of the offence
  • Strength of the evidence
  • Defendants previous criminal record
  • Bail record
  • Community ties