2.2 Bail: presumption and grounds

Question 1

What are the two types of remand available when a court adjourns?

Answer 1

1. Remand on bail, and

2. Remand into custody.

Question 2

What is bail?

Answer 2

The release of a person subject to a duty to surrender at an appointed time and place.

Question 3

Which part of Blackstone’s deals with bail?

Answer 3

Part 7

Question 4

What is the general position on bail?

Answer 4

Section 4(1) Bail Act 1976
Suspects have a "general right" (rebuttable presumption) of bail subject to exceptions.

Question 5

Who is never entitled to bail?

Answer 5

1. Those appealing their conviction or sentence, and

2. Defendants being committed for sentence from the Magistrates Court to the Crown Court.

Question 6

When does the defendant apply for bail?

Answer 6

After the prosecution has raised an objection to bail and applied for the defendant to be remanded into custody.

Question 7

Where are bail applications made and heard?

Answer 7

In the magistrates’ court, except in murder cases which are dealt with in the Crown Court (Section 115(1) Coroners and Justice Act 2009).

Question 8

What are the time limits for keeping prisoners on remand?

Answer 8

CrimPR Part 14

1. Either-way, tried on indictment: 70 days from first appearance at magistrates court;
2. Either way, tried summarily: 70 days from first appearance;
3. Summary offence, summary trial: 56 days;
4. Indictable-only offence: 182 days from sending for trial in the Crown Court.

Question 9

What are the three major reasons for objecting to bail where the offence is imprisonable and triable on indictment?

Answer 9

Schedule 1, para 2 Bail Act 1976
“Substantial grounds” for believing that D would:
1. Fail to surrender;
2. Commit further offences;
3. Interfere with witnesses or otherwise obstruct the course of justice.

Question 10

What are the basic procedural fundamentals of a bail hearing?

Answer 10

1. Both sides make representations;
2. Inquisitorial not adversarial;
3. Witnesses can be called;
4. Hearsay evidence is admissible.

Question 11

When may the court not remand somebody into custody?

Answer 11

Section 5A Bail Act 1976
A justice of the peace may not remand a person in, or commit a person to, custody … if—
(d)
it appears to the justice of the peace that there is no real prospect that the person will be sentenced to a custodial sentence in the proceedings.

Question 12

What happens if a person fails to surrender to custody?

Answer 12

Section 7(1) Bail Act 1976
If a person ... fails to surrender to custody at the time appointed for him to do so the court may issue a warrant for his arrest.

Question 13

What happens if a person breaches her bail conditions? (including FTS, curfew, etc.)

Answer 13

Section 6 Bail Act 1976

They can have their bail conditions varied or bail removed in which case: remand.

Question 14

What is the effect on the presumption in favour of bail if D has a previous conviction of a serious violent offence?

Answer 14

Section 25 Criminal Justice and Public Order Act 1994

No bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences.
(1)
… only if the court or … the constable considering the grant of bail is of the opinion that there are exceptional circumstances which justify it.
(2)
This also includes manslaughter, attempted murder, various sexual offences, etc.

Question 15

What factors will the court consider in deciding whether to bail the defendant?

Answer 15

1. The nature and seriousness of the offence and the likely disposal;
2. The character of the defendant (antecedent history, associations and community ties);
3. D’s bail record;
4. The strength of the evidence.

Question 16

Under what circumstances must the magistrates’ court consider bail?

Answer 16

1. The case is not dealt with at D’s first appearance (so the case is adjourned);
2. The prosecutor objects to bail or any of the exceptions to the presumption of bail in Schedule 1 Bail Act 1976 apply.

Question 17

Who does the general right of bail not apply to?

Answer 17

1. Those appealing conviction or sentence;

2. DD being committed for sentence to the Crown Court.

Question 18

When is there a presumption against bail?

Answer 18

Section 25 Criminal Justice and Public Order Act 1994
There is no bail pending trial for DD previously convicted of rape or murder who are on trial for similar offences a second time unless there are exceptional circumstances.