3. Bail and remands

Question 1

D5.22

Answer 1

Power to Adjourn

D5.22

At any stage before the case is sent to the Crown Court for trial or before (or during) a summary trial, a magistrates’ court may adjourn the proceedings (see the MCA 1980, ss. 10 and 18, and D5.29).

Question 2

, D5.27

Answer 2

Challenging Decisions on Adjournments

D5.27

It is possible to challenge the grant or refusal of an adjournment by way of judicial review (see D29.25 et seq.). However, the Divisional Court will be ‘particularly slow’ to interfere with a decision to refuse an adjournment, given the discretionary nature of that decision (per Clarke J in R (CPS) v Uxbridge Magistrates [2007] EWHC 205 (Admin), at [5]).

In DPP v Petrie [2015] EWHC 48 (Admin), Gross LJ said (at [21]) that the grant or refusal of an adjournment ‘is a paradigm example of a discretionary case management decision where an appeal ought only to succeed on well-recognised but limited grounds (for example, error of principle, error of law or where the decision can properly be characterised as plainly wrong)’. An example of such a case is Pari-Jones v CPS [2018] EWHC 3482 (Admin), where the magistrates’ court had refused an adjournment despite the fact that neither the defendant nor her solicitor could attend court because of bad weather. Andrews J, remitting the case for retrial, said (at [12]) that it was ‘self-evident that if the magistrates had taken into account all the relevant considerations and if they had balanced the [accused’s] right to a fair trial with the lack of fault caused by the weather conditions, the fact that she had already attended court previously, and all the other relevant considerations, they could not have refused this adjournment’. A similar approach was taken in R (Parashar) v Sunderland Magistrates’ Court [2019] EWHC 514 (Admin), where it was held that ‘the decision to fix a date for a trial at which the prosecution expert could attend and the defence expert (whose report had been served in good time) could not was clearly wrong’ (per Bean LJ, at [46]). His lordship noted that if the trial had proceeded on that basis, the accused’s ability to present his defence ‘would have been seriously compromised and the trial would inevitably have been unfair’. Simler J concurred, saying (at [49]):

To insist on a trial date on which the prosecution expert was available but the defence expert was not was wrong and would have led to an unfair trial. There is a high public interest in summary trials taking place quickly and on the day set for trial, and in adjournments not being granted absent compelling reasons. But it is also necessary as a matter of fairness and in the interests of justice, where a defence request to vacate a trial date is made, to consider whether, if it is not granted, the defendant will be able fully to present his defence, and if he will not be able to do so, the degree to which the defence will be compromised.

In Bourne v Scarborough Magistrates’ Court [2017] EWHC 2828 (Admin), [2018] 4 WLR 29, a justices’ legal adviser granted a prosecution application for an adjournment. The Divisional Court held that, even though the Justices’ Clerks Rules 2005 appear to limit the circumstances in which a justices’ legal adviser can consider applications for adjournments, the legal adviser in the present case had been nominated by the court to manage the case and so did have power, by virtue of CrimPR r. 3.5(2)(f), to adjourn the trial on the prosecution’s application even though the application was opposed by the defence. However, the legal adviser did not have sufficient information to enable him to make a properly informed decision in accordance with the principles set out in CPS v Picton [2006] EWHC 1108 (Admin). In the circumstances, he should either have permitted the parties to make their submissions at an oral hearing, or should have invited them to submit further written representations on the explicit basis that he would then make a decision on the papers and without a hearing.

Question 3

and D5.29

Answer 3

D5.29

Statutory Provisions on Power to Adjourn The power to adjourn is contained in the MCA 1980, ss. 10(1) and 18(4).

Magistrates’ Courts Act 1980, ss. 10 and 18

10. —
    (1) A magistrates’ court may at any time, whether before or after beginning to try an information, adjourn the trial, and may do so, notwithstanding anything in this Act, when composed of a single justice.
    (2) The court may when adjourning either fix the time and place at which the trial is to be resumed, or, unless it remands the accused, leave the time and place to be determined later by the court. …
    (4) On adjourning the trial of an information the court may remand the accused and, where the accused has attained the age of 18 years, shall do so if the offence is triable either way and—
    (a) on the occasion on which the accused first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or (b) the accused has been remanded at any time in the course of proceedings on the information;
    (b) the accused has been remanded at any time in the course of proceedings on the information;

and, where the court remands the accused, the time fixed for the resumption of the trial shall be that at which he is required to appear or be brought before the court in pursuance of the remand or would be required to be brought before the court but for section 128(3A) below.

18. —
    (1) Sections 19 to 23 below shall have effect where a person who has attained the age of 18 years appears or is brought before a magistrates’ court on an information charging him with an offence triable either way and—
    (a) he indicates under section 17A above that (if the offence were to proceed to trial) he would plead not guilty, or
    (b) his representative indicates under section 17B above that (if the offence were to proceed to trial) he would plead not guilty. …

…

(4) A magistrates’ court proceeding under sections 19 to 23 below may adjourn the proceedings at any time, and on doing so on any occasion when the accused is present may remand the accused, and shall remand him if—
(a) on the occasion on which he first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or (b) he has been remanded at any time in the course of proceedings on the information;
(b) he has been remanded at any time in the course of proceedings on the information;

and where the court remands the accused, the time fixed for the resumption of the proceedings shall be that at which he is required to appear or be brought before the court in pursuance of the remand or would be required to be brought before the court but for section 128(3A) below.

Question 4

-D5.30

Answer 4

D5.30

Remanding the Accused on Adjournments The MCA 1980, s. 128(1), provides that, whenever a magistrates’ court has power to remand a person, it may either remand in custody or remand on bail, in accordance with the BA 1976. Accordingly, the references in ss. 10 and 18 to ‘remanding’ an accused mean either a remand in custody (i.e. committing the accused to custody to be brought before the court at the end of the period of remand or at such earlier time as the court may require), or a remand on bail in accordance with the provisions of the BA 1976 (i.e. directing the accused to appear before the court at the end of the period of the remand or, if bail is made continuous, directing that the accused appear at every time to which the proceedings may be adjourned) (MCA 1980, s. 128(1) and (4)).

Section 18 governs adjournments until allocation (mode of trial) has been determined. Section 10 applies to appearances for summary offences up until conviction, and to appearances for either-way offences from after mode of trial has been determined in favour of summary trial to conviction. Sections 10(4) and 18(4) provide (in almost identical terms) that, on adjourning proceedings for an either-way offence, the court must remand the accused (on bail or in custody) unless the accused: (a) first appeared in answer to a summons or requisition (as opposed to being brought before the court in custody or appearing in answer to police bail); and (b) has not been remanded at an earlier hearing.

It follows that the magistrates may, at their discretion, adjourn without remanding the accused: (a) at all appearances for summary offences up to conviction; and (b) at appearances for either-way offences up to either a determination for trial on indictment or summary conviction, provided the accused initially appeared in answer to a summons or requisition and has not subsequently been remanded. Where a case is simply adjourned, there is no need to fix the date for the next hearing at the time of adjourning, whereas if there is a remand the adjournment date must be fixed forthwith and is the date to which the accused is remanded. An accused who is not remanded and who then fails to appear on the date to which the case is adjourned commits no offence, but it may be possible either for an arrest warrant to be issued or for the proceedings to be conducted in the absence of the accused. An accused who has been remanded on bail and who then fails without reasonable cause to surrender to custody commits an offence under the BA 1976.

Question 5

first sub-paragraph of D5.31 (the general 8 clear days rule only)

Answer 5

Period of Remand in Custody

D5.31

The maximum period for which a magistrates’ court may remand an accused in custody is ‘eight clear days’ (MCA 1980, s. 128(6)).

Question 6

; the first sub-paragraph of
D5.32

Answer 6

D5.32

Further Remands A person who is brought before the court after an earlier remand may be remanded again (MCA 1980, s. 128(3)). Thus, there may be several remand hearings before the case is sent to the Crown Court or the commencement of summary trial. The only limitation on the number of remands is the general discretion of magistrates to refuse an adjournment if it would be against the interests of justice (e.g., because they consider that the party requesting the adjournment should have been ready to proceed on the present occasion). By s. 130, a court remanding an accused in custody may order that, for subsequent remands, the accused be brought up before a different magistrates’ court nearer to the prison where the accused is to be confined while on remand. That alternate court then enjoys the same powers in relation to remand that the original court would otherwise have.

Question 7

, D5.36,

Answer 7

Remand on Bail

D5.36

Under the MCA 1980, s. 128(6)(a), the accused may be remanded for a period greater than eight clear days if the remand is on bail and both the accused and the prosecution agree to a longer period of remand.

Question 8

D15.7

Answer 8

Custody Time-limits

D15.7

Section 22 of the Prosecution of Offences Act 1985 (set out at D15.38) was introduced to remedy the manifest inadequacy of the provisions then available to ensure that trials on indictment begin within a reasonable time. It empowers the Secretary of State to make regulations fixing:

(a) the maximum period available to the prosecution to complete any preliminary (pre-trial) stage of proceedings for an offence; and/or
(b) the maximum period for which an accused may be kept in custody while awaiting completion of such a stage.

Question 9

, D15.8

Answer 9

Periods Applicable

D15.8

The regulations may prescribe an overall time-limit within which the prosecution must complete the stage of the proceedings in question (Prosecution of Offences Act 1985, s. 22(1)(a)). However, no overall time-limits currently apply.

Alternatively or additionally, the regulations may prescribe a custody time-limit, that being the maximum period for which the accused may be remanded in custody while the stage is being completed (s. 22(1)(b)).

Question 10

-15.9

Answer 10

D15.9

Time-limits The regulations in question, the Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987 No. 299), only impose custody time-limits. These are as follows:

(a) Between first appearance and committal. By reg. 4(2) and (4), the maximum period for which an accused charged with an indictable offence may be held in the custody of the magistrates’ court between first appearance and committal proceedings is 70 days.
(b) Between first appearance and summary trial. If the offence is triable either way and the court determines to try the case summarily, the maximum period in custody between first appearance and the court beginning to hear evidence for the prosecution is again 70 days, unless the decision for summary trial is taken within 56 days, in which case the limit is reduced to 56 days (reg. 4(2) and (3)). In the case of a summary offence, the maximum period is 56 days (reg. 4(4A)).
(c) Between committal and trial on indictment. By reg. 5(3)(a), the maximum period for which an accused committed for trial to the Crown Court may be held in custody between ‘committal’ and the start of trial is 112 days.
(d) Multiple committals. If a single indictment is preferred containing counts in respect of which the accused was committed for trial on two or more different occasions, the 112-day limit applies separately in relation to each offence (reg. 6(4)). See also D15.10.
(e) Section 51 sending. Where the accused has been sent for trial under the CDA 1998, s. 51, the maximum period is 182 days between the date on which the accused is sent to the Crown Court and the start of the trial. From this maximum must be deducted any period during which the accused was held in custody by the magistrates (reg. 5(6B)).
(f) Retrial directed by the Court of Appeal. Where an indictment is preferred by direction of the Court of Appeal, following the ordering of a retrial, the 112-day limit applies from that preferment (reg. 5(2)(b) and (3)(b)). See also Leeds Crown Court, ex parte Whitehead (17 June 1999 unreported, DC).
(g) Voluntary bill. Where proceedings are by way of a voluntary bill of indictment the 112-day period runs from the date of preferment of the bill (reg. 5(3)(b)).

Question 11

, D15.18

Answer 11

Effect of Expiry of Custody Time-limit

D15.18

If a custody time-limit expires before completion of the stage of proceedings in question, the accused must be granted bail, in relation at least to the offence to which the limit relates. This is made clear by reg. 6(6), which states that, where the Crown Court is notified that the 112-day time-limit between ‘committal’ and the start of the trial is about to expire in a certain case, it must bail the accused as from the expiry of the limit, subject to a duty to attend for trial. The regulations do not expressly deal with the procedure for bailing an accused who has the benefit of the 70-day time-limit between charge and committal or summary trial.

Question 12

and D15.33

Answer 12

Procedure for Seeking an Extension of Time-limits

D15.33

At any time before the expiry of a time-limit, the Crown Court, if the accused has already been committed for trial, or the magistrates’ court, in other cases, may extend the limit if satisfied of two matters (Prosecution of Offences Act 1985, s. 22(3)):

(a) that ‘the prosecution has acted with all due diligence and expedition’, and (b) that there is ‘good and sufficient cause for doing so’.
(b) that there is ‘good and sufficient cause for doing so’.

Instances of ‘good and sufficient cause’ are given in s. 22(3)(a)(i) and (ii), but they are clearly meant to be no more than examples.

An already extended limit may be further extended (s. 22(3)).

The criteria for the extension of the time-limit are discussed in more detail below. As to the timing of the application, in Campbell-Brown v Central Criminal Court [2015] EWHC 202 (Admin), [2015] 1 Cr App R 34 (516) the Divisional Court observed that the extension of custody time-limits should be addressed at the time that a trial date was fixed outwith the existing limit (in that case to accommodate the convenience of counsel), rather than after the decision as to listing had already been made. Further procedural guidance relating to custody time-limit extensions is contained in CrimPD XIII, Listing F.4 (see Supplement, PD-121).

Question 13

paragraphs D7.1-D7.4

Answer 13

Introduction

D7.1

Bail in criminal proceedings is governed by the Bail Act 1976 (BA 1976) (see s. 1(6) of the Act). ‘Bail in criminal proceedings’ is defined in s. 1(1) of the Act as: ‘(a) bail grantable in or in connection with proceedings for an offence to a person who is accused or convicted of the offence, or (b) bail grantable in connection with an offence to a person who is under arrest for the offence or for whose arrest for the offence a warrant (endorsed for bail) is being issued’. The procedural rules relating to bail are set out in CrimPR part 14 (see Supplement, R-121). This section is chiefly concerned with bail from magistrates’ courts and the Crown Court. For bail in appeals to the Court of Appeal, see D7.5 and D27.14.

Answer 14

Bail by Magistrates’ Courts

D7.2

A magistrates’ court, when adjourning a case where the proceedings were commenced by the accused being charged at the police station (rather than by the issue of a summons or a written charge and requisition), must remand the accused (see the MCA 1980, ss. 5(1), 10(1) and 18(4), at D5.29, for the jurisdiction to adjourn and remand at the preliminary stages of a case). Under the MCA 1980, s. 128(1), a remand by a magistrates’ court may be in custody or on bail, in accordance with the BA 1976. For the time restrictions on remands in custody and the possibility of remands in the absence of the accused, see D5.33. Magistrates also have power to grant bail for the period of any remand for reports etc. after summary conviction (see the MCA 1980, s. 10(3), and also the PCC(S)A 2000, s. 11, for remands on bail for medical examination). Where a magistrates’ court sends an accused to the Crown Court for trial under the CDA 1998, s. 51, the accused may be kept in custody or released on bail (see D10). Similarly, committals for sentence may be in custody or on bail. Where a magistrates’ court has summarily convicted an accused and passed a custodial sentence, it may grant bail pending the determination of an appeal to the Crown Court or to the Divisional Court by way of case stated (MCA 1980, s. 113). The CAJA 2009, s. 115, provides that a person charged with murder may not be granted bail except by order of a Crown Court judge (see D7.3).

Answer 15

Bail by the Crown Court

D7.3

Under the Senior Courts Act 1981, s. 81(1)(a) to (g), the Crown Court may grant bail to any person:

(a) who has been sent in custody for trial in the Crown Court;
(b) who has been given a custodial sentence following conviction in the magistrates’ court (whether by guilty plea or a finding of guilty after trial) and who is appealing to the Crown Court against conviction and/or sentence;
(c) who is in the custody of the Crown Court pending disposal of the case (so whenever the Crown Court adjourns a trial or adjourns between conviction and sentence, it has a discretion to grant the accused bail for the period of the adjournment);
(d) and (e) whose case has been decided by the Crown Court but who has applied to the court to state a case for the Divisional Court’s opinion or is seeking judicial review of the decision;
(f) to whom the Crown Court has granted a certificate that the case is fit for appeal to the Court of Appeal, whether against conviction or against sentence; and
(g) who has been remanded in custody by a magistrates’ court on adjourning a case under the PCC(S)A 2000, s. 11, the CDA 1998, s. 52(5), or the MCA 1980, ss. 5, 10, 17C, 18 or 24C, provided the magistrates’ court has granted a certificate that, before refusing bail, it heard full argument.

All the above powers are subject to the CJPO 1994, s. 25 (see D7.8).

Answer 16

D7.4

Murder Cases The CAJA 2009, s. 115(1), provides that a person charged with murder may not be granted bail except by order of a Crown Court judge. A person who appears before a magistrates’ court charged with murder must be committed (in custody) to the Crown Court (s. 115(4)). A Crown Court judge must then make a decision about bail as soon as reasonably practicable and, in any event, within the period of 48 hours (excluding weekends and public holidays) beginning with the day after the day on which the person appears before the magistrates’ court (s. 115(3)). These provisions apply whether or not the accused is charged with any offences in addition to the murder charge (s. 115(6)).

Question 17

, D7.6

Answer 17

Presumption in Favour of Bail

D7.6

Section 4(1) of the BA 1976, together with sch. 1 (see D7.142), creates a rebuttable presumption in favour of bail (sometimes referred to, somewhat inaccurately, as a ‘right to bail’). It provides that: ‘A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act’. Subsections (2) to (4) of s. 4 then define the persons who benefit from the presumption in favour of bail. They are any person:

(a) who appears before the Crown Court or a magistrates’ court in the course of or in connection with proceedings for an offence, or applies to a court for bail (or for a variation of the conditions of bail) in connection with those proceedings (s. 4(2));
(b) who has been convicted of an offence and whose case is adjourned for reports before sentencing (s. 4(4)); and
(c) who has been brought before the court under the CJA 2003, sch. 8, for alleged breach of a requirement of a community order (s. 4(3)).

Apart from cases where the accused has been convicted and the hearing has been adjourned for pre-sentence reports, s. 4(1) does not apply once a person has been convicted of an offence (as is made clear in the proviso to s. 4(2)). Therefore, an appellant seeking bail pending determination of an appeal against conviction and/or sentence cannot rely on the presumption in favour of bail. Neither can an offender who is committed to the Crown Court for sentence following conviction in a magistrates’ court. In both those situations, there is power to grant bail, but its grant or refusal is entirely at the discretion of the court. It should also be noted that s. 4(1) does not apply to bail from the police station, although, once a detainee has been charged, the PACE 1984, s. 38(1), imposes on the custody officer a duty to grant bail unless its refusal can be justified on grounds similar to those which would justify a court refusing bail under the BA 1976 (see D2.46 et seq.). Whenever bail is granted in criminal proceedings (whether or not subject to the presumption in s. 4), the general provisions of the Act concerning bail apply (e.g., a person who fails without reasonable cause to surrender commits an offence under s. 6).

Question 18

-7.7,

Answer 18

D7.7

Bail Following Indication of Guilty Plea at ‘Plea before Venue’ Hearing In Rafferty [1999] 1 Cr App R 235, the Court of Appeal dealt with the position where an accused enters a guilty plea at the ‘plea before venue’ procedure (see D6.11 et seq.), and is then committed for sentence to the Crown Court. Thomas J said (at p. 237) that, in most such cases, it would not be usual to alter the position as regards bail or custody. When a person who had been on bail pleads guilty at the plea before venue, the usual practice should be to continue bail, even if it is anticipated that a custodial sentence will be imposed by the Crown Court, unless there are good reasons for remanding the accused in custody. If the accused is in custody, then it would be unusual, if the reasons for the remand in custody remain unchanged, to alter the position.

Question 19

the first sub-paragraph of D7.8,

Answer 19

No Bail for Homicide or Rape if Previous Conviction

D7.8

Under the CJPO 1994, s. 25 (see D7.10), the court may not grant bail to an accused who is charged with (or has been convicted of) murder, attempted murder, manslaughter, rape or attempted rape, or certain other offences under the SOA 2003, if the accused has been convicted of any of these offences (or culpable homicide) in the past, unless it is of the opinion that there are exceptional circumstances which justify it. In a case where the previous conviction was for manslaughter, the restriction applies only if the accused received a custodial sentence for that offence. ‘Conviction’ is widely defined to include a finding that the defendant was not guilty by reason of insanity, or was found to have done the act or made the omission charged in a case where he was unfit to plead. Previous convictions in other EU Member States are treated as being relevant previous convictions if the corresponding offences in the UK would be so treated.

Question 20

D7.11-7.13

Answer 20

Refusing Bail to an Accused Charged with an Indictable Offence

D7.11

Part I of sch. 1 to the 1976 Act sets out the circumstances in which an accused may be refused bail if charged with (or awaiting sentence for) at least one offence that is triable on indictment and punishable with imprisonment (part IA applies where the offences(s) are imprisonable summary offences, and part II applies when none of the offences are imprisonable; see D7.35 et seq).

An unconvicted accused charged with an offence which is imprisonable and triable on indictment need not be granted bail if one or more of the grounds for a remand in custody (listed in the BA 1976, sch. 1, part I, paras. 2 to 6A) is applicable. The first — and most commonly relied on — ground (para. 2) subdivides into three (see D7.12). As regards offenders convicted but remanded for reports, there is a further ground (para. 7) on which reliance may also be placed. The statutory grounds for refusing bail are as follows.

Answer 21

Risk of Absconding, Further Offences or Interference with Witnesses

D7.12

Bail Act 1976, sch. 1, para. 2

(1) The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would—
(a) fail to surrender to custody, or
(b) commit an offence while on bail, or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

Answer 22

D7.13

Standard of Proof The opening words of para. 2(1) do not require the court to be satisfied that the consequences specified in subparagraphs (a) to (c) will in fact occur in the event of bail being granted, or even to be satisfied that they are more likely than not to occur. The court must merely be satisfied that there are ‘substantial grounds for believing’ that they would occur. Although the question posed by para. 2 is whether substantial grounds exist for believing that a future event will occur and to that extent is a question of fact, it is not a question which can be answered according to the usual rules of evidence. Thus in Re Moles [1981] Crim LR 170 it was held that a police officer explaining the objections to bail was entitled to recount what he had been told by a potential witness about the threats the latter had received, with a view to showing that the granting of bail would lead to further interference with witnesses. In Mansfield Justices, ex parte Sharkey [1985] QB 613, Lord Lane CJ referred to Re Moles and said (at p. 626A), ‘there is no requirement for formal evidence to be given [at an application for bail] … It was for example sufficient for the facts to be related to the justices at second hand by a police officer.’ Current practice when presenting objections to bail in a magistrates’ court is not even to have a police officer present, but for the CPS representative to argue that bail is inappropriate on the basis of information supplied by the police and included in the case file.

Question 23

, D.7.15-7.22

Answer 23

D7.15

No Real Prospect of a Custodial Sentence Paragraph 1A of sch. 1 provides that para. 2 does not apply where the accused has attained the age of 18, and has not been convicted of an offence in those proceedings, and it appears to the court that there is no real prospect that the accused will be sentenced to a custodial sentence in the proceedings. In such a case, bail cannot be with-held on any of the grounds set out in para. 2.

Answer 24

D7.16

Relevant Factors Certain factors to which the court should have regard when taking a decision under para. 2 are listed in para. 9. These factors are:

(a) the nature and seriousness of the offence and the probable method of dealing with the offender for it (see D7.17);
(b) the character, antecedents, associations and community ties of the accused (see D7.18 and D7.19);
(c) the accused’s ‘record’ for having answered bail in the past (see D7.20);
(d) the strength of the evidence against the accused (see D7.21); and
(e) if the court is satisfied that there are substantial grounds for believing that the accused would commit an offence while on bail, the risk that the accused may engage in conduct likely to cause physical or mental injury to anyone else (see D7.22).

Answer 25

D7.17

Nature and seriousness of offence (para. 9(a)). The relevance of the offence alleged being serious is that the accused will know that, if convicted, a severe sentence is likely and it will therefore be tempting to abscond rather than run the risk of such a sentence. The gravity of the charge is not an automatic reason for refusing bail (although, by virtue of the CJPO 1994, s. 25, an accused must normally be refused bail where the charge is, e.g., homicide or rape and he has previously been convicted of such an offence (see D7.8)). Indeed, in Hurnam v State of Mauritius [2005] UKPC 49, [2006] 1 WLR 857, the Privy Council said that the seriousness of an offence cannot be treated as a conclusive reason for refusing bail to an unconvicted suspect. Lord Bingham said (at [15]):

The seriousness of the offence and the severity of the penalty likely to be imposed on conviction may well … provide grounds for refusing bail, but they do not do so of themselves, without more: they are factors relevant to the judgment whether, in all the circumstances, it is necessary to deprive the applicant of his liberty. Whether or not that is the conclusion reached, clear and explicit reasons should be given.

The statutory presumption in favour of bail continues to apply after conviction where there is an adjournment for the preparation of a pre-sentence report before sentence is passed. In R (R) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin), the Divisional Court considered the refusal of bail because of the likelihood of a custodial sentence. Holman J said (at [24]) that, of itself, ‘the mere fact that a person has been convicted and a custodial sentence is inevitable, is not sufficient to trigger the exception to bail. It still is necessary that the court is satisfied that there are substantial grounds for believing that one of the statutory exceptions [to the presumption in favour of bail] applies.’ This point is reiterated at [31], where his lordship said that, ‘even the inevitability of a custodial sentence is not itself an exception to the right to bail, unless it justifies a court being satisfied that there are substantial grounds for believing that the defendant would fail to surrender to custody’.

Answer 26

D7.18

Character and antecedents (para. 9(b)). This refers primarily to previous convictions. These may make a custodial sentence more likely (especially if the accused, if convicted of the present offence, will be in breach of a suspended sentence of imprisonment). Moreover, a person of previous good character is more likely to be trusted by the courts than one with a criminal record. Previous convictions under the BA 1976, s. 6, for failing to surrender to custody in answer to bail are especially relevant (see subparagraph (c)).

Answer 27

D7.19

Associations and community ties (para. 9(b)). The word ‘associations’ is generally taken to refer to undesirable friends with criminal records. Examining the ‘community ties’ of the accused involves looking at how easy it would be to abscond and how much the accused has to lose by absconding. Relevant factors include the following: How long has the accused lived at the present address? Does the accused have a partner? Does the accused have dependent children? Is the accused in employment? If so, for how long? Does the accused have a mortgage or a protected tenancy? An accused of ‘no fixed abode’ or living in short-term accommodation is not automatically debarred from bail, but the ease of disappearing to another address is a factor to be considered.

Answer 28

D7.20

Bail record (para. 9(c)). Considering the bail record of the accused requires the court to consider whether the accused has absconded in the past. Absconding in earlier proceedings is regarded as evidence of a risk that the accused may do so again.

Answer 29

D7.21

Strength of the prosecution evidence (para. 9(d)). This is relevant to whether an accused would answer bail, in the sense that one who knows there is a good chance of being acquitted is less likely to abscond than one who anticipates almost certain conviction. It can be argued that there is no point in the accused absconding if an acquittal is likely anyway. Conversely, if the prosecution case is strong, so that conviction is likely, the accused may abscond rather than ‘face the music’ (especially if a custodial sentence is likely). It is also relevant that a remand in custody followed by acquittal creates a manifest, if sometimes unavoidable, injustice. In borderline cases, where the arguments against bail are strong but not overwhelming, the court may prefer to run the risk of the accused absconding etc. rather than run the risk of an acquittal after a long period in custody on remand.

Answer 30

D7.22

Risk of injury to someone else (para. 9(e)). Where the court is satisfied that there are substantial grounds for believing that the accused would commit an offence while on bail, the court considers whether that offence is likely to cause physical or mental injury to any other person.

Paragraph 9 concludes with the words ‘as well as to any others [i.e. considerations] which appear to be relevant’, thus making it clear that the considerations mentioned in para. 9(a) to (e) are not exhaustive. Those ‘others’ might include the fact that the accused has previously committed offences while on bail, or the suggestion that potential prosecution witnesses have already received threats and/or are known to the accused, who could therefore locate them if at liberty. Also, it should be noted that the BA 1976, s. 4(9), stipulates that ‘in taking any decisions required by Part I or II of Schedule 1 to this Act, the considerations to which the court is to have regard include, so far as relevant, any misuse of controlled drugs by the defendant’.

Question 31

; D7.23-

Answer 31

Other Grounds for Withholding Bail

D7.23

Part I of sch. 1 to the BA 1976 (see D7.151 et seq.) sets out other grounds for withholding bail: risk of injury to an ‘associated person’ (para. 2ZA); where the accused is already on bail for another offence (para. 2A); for the accused’s own protection (para. 3); where the accused is already serving a custodial sentence for another offence (para. 4); where the court has insufficient information (para. 5); where the accused has absconded in the present proceedings (para. 6). Additionally, where the accused is charged with murder, para. 6ZA restricts the circumstances in which bail can be granted.

Answer 32

D7.24

Domestic Violence: Risk to an ‘Associated Person’ By virtue of para. 2ZA, the accused need not be granted bail if the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person, or else cause such a person to fear such injury. For this purpose, an ‘associated person’ is a person who is associated with the accused within the meaning of the Family Law Act 1996, s. 62(3) (the definition includes people who are or have been married to each other, or who are or have been civil partners; cohabitants or former cohabitants; people who live or have lived in the same household, otherwise than as an employee, tenant, lodger or boarder; relatives; people who have or have had an intimate personal relationship with each other which is or was of significant duration; and in relation to any child, a parent or person who has or has had parental responsibility for the child).

Answer 33

D7.25

Accused Already on Bail Under para. 2A, the accused need not be granted bail if it appears to the court that the accused was on bail in respect of another offence on the date of the current offence. However, by virtue of para. 1A, para. 2A does not apply where the accused has attained the age of 18, and has not been convicted of an offence in the current proceedings, and it appears to the court that there is no real prospect that the accused will be sentenced to a custodial sentence in the proceedings.

Answer 34

D7.26

Own Protection Under para. 3, the accused need not be granted bail if the court is satisfied that remaining in custody would be for the accused’s own protection. This will (for example) cover cases where the offence alleged has caused anger in the area where it was committed and there is a risk of members of the public exacting retribution on the person believed to be responsible. Where the accused is a child or young person, bail may be refused under para. 3 if the accused should be kept in custody ‘for his own welfare’.

Answer 35

D7.27

Already in Custody Under para. 4, the accused need not be granted bail if already serving a custodial sentence. Paragraph 4 applies only if the accused is in custody pursuant to a sentence, not when in custody as a result of a remand in other proceedings that are currently outstanding. Where an accused is certain to be in custody for the foreseeable future, the court may find it more convenient to grant what may be regarded as technical bail; this avoids the restrictions on the periods for which remands in custody may be ordered and the consequent need to bring the accused back to court for further remand hearings.

Answer 36

D7.28

Insufficient Time Under para. 5, the accused need not be granted bail if the court is satisfied that, owing to lack of time since the commencement of the proceedings, it has not been practicable to obtain sufficient information for the purposes of taking the decision on bail. In such cases, the court might remand in custody (possibly for a shorter than usual period) to enable the necessary information to be discovered. Paragraph 5 might apply, for example, where the police are not satisfied that the accused has given them correct particulars and think the accused may have previous convictions under another name, or if time is needed to check an address, or if inquiries are still in hand which may reveal the offence to be more serious than originally supposed and/or that the accused has committed additional offences. It is submitted that para. 5 should be relied on sparingly, and should not be used to justify dilatoriness on the part of the police or the prosecution in marshalling their objections to bail.

A remand in custody under para. 5 does not amount to a decision to withhold bail for the purposes of para. 2 of part IIA, and so does not restrict further applications for bail (see D7.70).

Answer 37

D7.29

Absconded in the Present Proceedings Under para. 6, the accused need not be granted bail if arrested under the BA 1976, s. 7, having previously been released on bail in connection with the current proceedings (see D7.147). However, by virtue of para. 1A, para. 6 does not apply where the accused has attained the age of 18, and has not been convicted of an offence in the current proceedings, and it appears to the court that there is no real prospect that the accused will be sentenced to a custodial sentence in the proceedings.

Answer 38

D7.30

Bail in Cases Involving Abuse of Drugs Paragraphs 6A to 6C of the BA 1976, sch. 1, part I, provide that an accused aged 18 or over may not be granted bail, unless the court is of the opinion that there is no significant risk of the accused committing an offence while on bail, where the three conditions set out in para. 6B apply, namely:

(1) there is drug test evidence (by way of a lawful test obtained under the PACE 1984, s. 63B, or the CJA 2003, s. 161) that there is a specified Class A drug in the person’s body;
(2) either the accused is charged with an offence under the Misuse of Drugs Act 1971, s. 5(2) or (3), and the offence relates to a specified Class A drug, or the court is satisfied that there are substantial grounds for believing that the misuse of a specified Class A drug caused or contributed to the offence with which the accused is charged or that offence was motivated wholly or partly by intended misuse of a specified Class A drug; and
(3) the person does not agree to undergo an assessment (carried out by a suitably qualified person) of dependency upon or a propensity to misuse any specified Class A drugs, or has undergone such an assessment but does not agree to participate in any relevant follow-up which has been offered.

If an assessment or follow-up is proposed and agreed to, it will be a condition of bail that it is undertaken (BA 1976, s. 3(6D)).

The phrase ‘may not’ is a prohibitive one and makes it plain that the court should not grant bail unless satisfied that there was no significant risk of the accused committing offences while on bail. In essence, the presumption created by the BA 1976, s. 4, is reversed and it becomes necessary for the court to be persuaded that there is no significant risk of the accused committing an offence if released on bail (cf. R (Wiggins) v Harrow Crown Court [2005] EWHC 882 (Admin), per Collins J, at [24]).

Under sch. 1, para. 2(2), where the accused falls within these drugs provisions, para. 2 (refusal of bail where there are substantial grounds for believing that the accused will fail to surrender to custody etc.: see D7.12) does not apply unless the court is of the opinion that there is no significant risk of the accused committing an offence while on bail.

Answer 39

D7.31

Murder Under para. 6ZA, an accused who is charged with murder may not be granted bail unless the court is of the opinion that there is no significant risk that the accused will, if released on bail, commit an offence that would, or would be likely to, cause physical or mental injury to any other person. Again, the presumption in favour of bail is effectively reversed.

Question 40

D7.35

Answer 40

Imprisonable Summary Offences

D7.35

Under the BA 1976, sch. 1, part I, para. 1(2) (see D7.151), where the offence is a summary offence punishable with imprisonment, or an offence to which the MCA 1980, s. 22, applies (criminal damage where the value involved does not exceed £5,000), part I of sch. 1 does not apply. In such cases, the BA 1976, sch. 1, part IA, applies instead (see D7.158 et seq.). Under part IA, the exceptions to the presumption in favour of bail are as follows:

(a) where the accused has previously been granted bail and has failed to surrender to custody in those proceedings, and the court believes, in view of that failure, that the accused would, if released on bail, fail to surrender to custody (para. 2);
(b) where the accused was on bail on the date of the current alleged offence and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail (para. 3);
(c) where the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (as defined by the Family Law Act 1996, s. 62, see D7.24), or cause such a person to fear physical or mental injury, i.e. domestic violence (para. 4);
(d) where the court is satisfied that the accused should be kept in custody for the accused’s own protection (or welfare, if a child or young person) (para. 5);
(e) where the accused is already serving a custodial sentence (para. 6);
(f) where the accused has been arrested under the BA 1976, s. 7, and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to the accused or any other person) (para. 7);
(g) where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decision on whether to grant bail for want of time since the institution of the proceedings (para. 8); and
(h) where part 1, paras. 6A to 6C (see D7.30), would otherwise be applicable were the current offence an indictable one (para. 9).

Answer 41

D7.36

No Real Prospect of a Custodial Sentence The BA 1976, sch. 1, part IA, para. 1A, provides that para. 2 (failure to surrender to custody), para. 3 (committing offences while on bail) and para. 7 (accused arrested under s. 7) do not apply where the accused has attained the age of 18, and has not been convicted of an offence in the proceedings, and it appears to the court that there is ‘no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings’.

Question 42

D7.37

Answer 42

Non-imprisonable Offences

D7.37

Part II of sch. 1 to the BA 1976 (see D7.161 et seq.) sets out the reasons which permit the refusal of bail to an accused charged solely with one or more offences that are not punishable with imprisonment. The grounds for withholding bail in such cases are as follows:

(a) where the accused is under the age of 18 or has been convicted of an offence in those proceedings and (in either case), having been previously granted bail in criminal proceedings, has failed to surrender to custody and the court believes, in view of that failure, that the accused would fail to surrender to custody (para. 2);
(b) where the court is satisfied that the accused should be kept in custody for his or her own protection (or welfare, if a child or young person) (para. 3);
(c) where the accused is already serving a custodial sentence (para. 4);
(d) where the accused is under the age of 18 or has been convicted of an offence in those proceedings, and (in either case) has been arrested under the BA 1976, s. 7, and the court is satisfied that there are substantial grounds to believe that the accused would fail to surrender to custody, commit an offence on bail, or interfere with witnesses or otherwise obstruct the course of justice (para. 5);
(e) where the accused has been arrested under s. 7 and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (as defined by the Family Law Act 1996, s. 62, see D7.24), or to cause such a person to fear such injury, i.e. domestic violence (para. 6).

It should be noted that the grounds of ‘risk of absconding etc.’ and ‘insufficient time’ for refusing bail to someone charged with imprisonable offences do not apply where the offences are non-imprisonable.

Question 43

D7.45-49

Answer 43

Conditions of Bail

D7.45

The BA 1976, s. 3, governs the duties resting on a person granted bail in criminal proceedings and the various requirements which may be attached to a grant of bail. Where the court grants ‘unconditional’ bail, the accused has simply to surrender to custody (i.e. attend court) at the date and time specified (s. 3(1)). However, the court may impose a wide range of additional requirements by granting bail subject to specific conditions, known as ‘conditional bail’ (s. 3(6)).

CrimPR 14.16 applies where the court may impose a bail condition requirement with which the accused must comply while in another EU Member State (to be monitored and enforced by that Member State); r. 14.17 applies where another EU Member State requests the monitoring and enforcement of an accused’s compliance with a supervision measure imposed by an authority in that other State.

Answer 44

Duty to Surrender to Custody

D7.46

A person granted bail in criminal proceedings is under a duty to surrender to custody (BA 1976, s. 3(1)). ‘Surrender to custody’ is defined in s. 2(2) as surrendering into the custody of the court the accused has been bailed to attend. For discussion of what precisely is meant by surrendering to the custody of a court, see D7.101. The date fixed for surrender to custody may be varied to a later date (see the MCA 1980, ss. 43 and 129, for a magistrates’ court’s powers in this respect). Failure without reasonable cause to surrender to custody is an offence under the BA 1976, s. 6 (see D7.110).

By s. 3(2) of the 1976 Act, an accused granted bail in criminal proceedings may not be bailed on his or her own recognizance (in other words, an accused may not act as his or her own surety). The accused may, however, be required to provide other people to stand surety, under s. 3(4) (see D7.55), or may be required to give security for his or her surrender to custody, under s. 3(5) (see D7.60).

Answer 45

Conditions that May be Imposed by the Court

D7.47

By virtue of the BA 1976, s. 3(6) (see D7.136), a person who is granted bail may be required by the court to comply with such requirements as appear to the court necessary to secure that the person:

(a) surrenders to custody;
(b) does not commit an offence on bail;
(c) does not interfere with witnesses or otherwise obstruct the course of justice;
(d) is available for the making of inquiries or a report to assist in sentencing (this condition may be imposed only it appears to be necessary to do so for the purpose of enabling inquiries or a report to be made: sch. 1, part I, para. 8(1A)); and
(e) attends an interview with a legal representative (this will nearly always be a solicitor).

Conditions may also be imposed for the protection of the accused (or, if a child or young person, for the accused’s own welfare or interests).

Answer 46

D7.48

The BA 1976, sch. 1, part I, para. 8(1), provides that no conditions may be imposed unless it appears to the court that it is ‘necessary’ to do so either (a) for the purpose of preventing the occurrence of any of the events mentioned in sch. 1, para. 2(1), or for the accused’s own protection or, if a child or young person, for the accused’s own welfare or interests. The events mentioned in sch. 1, part I, para. 2, are precisely the same as those mentioned in paras. (a) to (c) of s. 3(6): failure to surrender to custody, commission of further offences and interference with witnesses. There is thus an almost complete overlap between s. 3(6) and sch. 1, part I, para. 8. This was attributed by Lord Lane CJ in Mansfield Justices, ex parte Sharkey [1985] QB 613 to ‘indifferent drafting’ (at p. 625C). Counsel for the applicants argued that para. 8 impliedly restricted the imposition of requirements to cases where the court was satisfied that there were substantial grounds for believing that one of the adverse consequences would occur unless bail was made conditional. However, this argument was rejected by the Divisional Court. Having quoted s. 3(6) and para. 8, Lord Lane explained their effect in the context of a condition imposed to prevent further offences. His lordship said (at p. 625E):

In the present circumstances the question the justices should ask themselves is a simple one: ‘Is this condition necessary for the prevention of the commission of an offence when on bail?’ They are not obliged to have substantial grounds. It is enough if they perceive a real and not a fanciful risk of the offence being committed. Thus, section 3(6) and paragraph 8 give the court a wide discretion to inquire whether the condition is necessary [emphasis added].

It followed that the justices were not obliged to have substantial grounds for believing that a repetition of the accused’s conduct would occur. It was enough that they perceived a ‘real risk’ of that happening. Although set out in the context of determining the legality of conditions imposed to prevent offences while on bail, the Lord Chief Justice’s reasoning is equally applicable to conditions designed to prevent the accused absconding or interfering with witnesses.

A similar approach was adopted in R (CPS) v Chorley Justices [2002] EWHC 2162 (Admin), where the Divisional Court noted that the only prerequisite for imposing conditions on bail is that, in the circumstances of the particular case, imposition of the condition is necessary to achieve the aims specified in that section (e.g., preventing the accused from absconding, or committing offences while on bail, or interfering with witnesses or otherwise obstructing the course of justice).

Answer 47

D7.49

The BA 1976 refers to some specific conditions (such as sureties and security) but it does not contain a definitive list of conditions that may be imposed. The court may impose any condition so long as it is necessary to prevent the accused from absconding, committing offences etc. Under CrimPR 14.5(4) a prosecutor who wants the court to impose a condition must specify the condition and explain what purpose it would serve.

Commonly imposed conditions include:

(a) a condition of residence, often expressed as a condition that the accused is to live and sleep at a specified address;
(b) a condition that the accused is to notify any changes of address to the police;
(c) a condition of reporting (whether daily, weekly or at other intervals) to a local police station;
(d) a curfew (i.e. the accused must be at a specified address between certain hours);
(e) a condition that the accused is not to enter a certain area or building or go within a specified distance of a certain address;
(f) a condition that the accused is not to contact (whether directly or indirectly) the victim of the alleged offence and/or any other probable prosecution witness; and
(g) a condition that the accused’s passport must be surrendered to the police (sometimes with an additional restriction to prevent the accused from applying for travel documents).

Conditions (a), (b), (c) and (g) are particularly relevant to reducing the risk of absconding. A special form of residential condition is that the accused is to reside at a bail hostel or probation hostel. When imposing such a condition the court may, and normally will, impose an additional requirement that the accused must comply with the rules of the hostel (s. 3(6ZA)). In the case of a convicted offender being remanded for reports, a requirement of residence at a hostel may be imposed not simply to reduce the risk of absconding but, additionally or alternatively, to assess the offender’s suitability for being dealt with by means of a community order. Conditions (d) and (e) are designed to prevent the commission of offences when on bail. A curfew may be appropriate where the offence with which the accused is charged was allegedly committed at night; a geographical restriction is useful if the offence was one of violence committed at a certain address (in effect, the accused is ordered to stay away from the address). Conditions (e) and (f) may be imposed to minimise the risk of interference with witnesses.

Question 48

, D7.51

Answer 48

Electronic Monitoring

D7.51

Electronic monitoring (colloquially known as ‘tagging’) is available as a condition of bail under the BA 1976, s. 3(6ZAA). This condition is often combined with a curfew condition.

Question 49

, D7.55

Answer 49

Sureties

D7.55

A person granted bail in criminal proceedings may be required, before release on bail, to provide one or more sureties to secure the person’s surrender to custody (BA 1976, s. 3(4), see D7.136). Section 3(4) does not place any fetter on the discretion to demand a surety (cf. s. 3(6)). However, sch. 1, part I, para. 8, provides that no conditions shall be imposed under, inter alia, s. 3(4) unless they appear to the court necessary to prevent the occurrence of any of the events mentioned in sch. 1, part I, para. 2(1) (i.e. failure to surrender to custody, the commission of one or more offences while on bail, or interference with witnesses or obstruction of the course of justice). In R (Shea) v Winchester Crown Court [2013] EWHC 1050 (Admin), the Divisional Court ruled that there is no power (under the BA 1976 or otherwise) to require a surety to ensure no further offending: a surety can be sought only for the purpose of securing surrender to custody, and not for any other purpose. It follows that one or more sureties should be required only in cases where there appears to be a risk of absconding.

The position is different where the accused is under the age of 17 (see D7.59).

Question 50

, D7.60

Answer 50

Deposit of Security

D7.60

Under the BA 1976, s. 3(2) (see D7.136), a person cannot stand as surety for him or herself. However, persons granted bail may be required to give ‘security’ for their surrender to custody, i.e. deposit with the court money or some other valuable item which will be liable to forfeiture in the event of non-attendance in answer to bail (BA 1976, s. 3(5)). As with sureties, security may be required as a condition of bail only if it is considered necessary to prevent absconding. Where security has been given in pursuance of s. 3(5) and the person bailed absconds, the court may, unless there appears to have been reasonable cause for the failure to surrender to custody, order forfeiture of the security (s. 5(7) to (9)).

In R (Stevens) v Truro Magistrates’ Court [2001] EWHC Admin 558, [2002] 1 WLR 144, it was held that it is permissible for a third party to make available an asset to an accused for use as security, and that the court can accept such an asset. However, as it is the accused who gives the security, the arrangements the accused might make with those who assist with the provision of the requisite security are not a matter for the court. There is no obligation for the third party to be notified before the security is forfeited on the accused’s non-attendance.

Question 51

, D7.65

Answer 51

Applications to Vary the Conditions of Bail

D7.65

Where bail has been granted subject to conditions, the accused may apply for the conditions to be varied (BA 1976, s. 3(8)(a)). The application should be made to the court which granted bail or, where the accused has been sent to the Crown Court for trial, or committed to the Crown Court for sentence, to the Crown Court. Furthermore, the prosecution may make a similar application either for existing conditions to be varied or, in a case where the court originally granted unconditional bail, for conditions to be imposed (s. 3(8)(b)). A party who intends to apply for a variation of bail conditions must give advance notice to the court and to the other party, explaining what is sought and why. CrimPR 14.7 applies to such applications (see D7.67). Under r. 14.7(2)(c), the application must be served not less than two business days before any hearing in the case at which the applicant wants the court to consider it, if such a hearing is already due. The court may determine an application to vary a condition without a hearing if the variation has been agreed by the parties (r. 14.7(7)(c)); if there is to be a hearing, it should take place no later than the fifth business day after the application was served (r. 14.7(6)(b)).

Question 52

-7.66

Answer 52

Breach of Bail Conditions

D7.66

Breach of any condition which has been imposed may result in the accused being arrested without warrant under the BA 1976, s. 7(3), and bail being withdrawn. See D7.102.

Question 53

D7.67

Answer 53

Application Procedure

D7.67

Guidance on the procedure to be followed for bail applications is contained in CrimPR part 14 (see Supplement, R-121). Rule 14.2(1)(a) states that a decision on bail cannot be made unless each party (and any surety directly affected by the decision) is present (in person or via live link) or has had an opportunity to make representations. However, where the accused is in custody, bail may be considered in the absence of an accused who has waived the right to attend, or who was present when bail was refused on a previous occasion and who has been in custody continuously since then (r. 14.2(1)(b)). Rule 14.2(2) states that a bail hearing may take place in public or in private.

Assuming the presumption in favour of bail applies by virtue of the BA 1976, s. 4(1), the onus is on the court to justify any refusal of bail in accordance with sch. 1 to the Act. This applies both when the accused first appears and at all subsequent appearances while he remains within the scope of s. 4(1) (sch. 1, part IIA, para. 1).

The question of bail is always a matter for the court. However, when adjourning the case of an unconvicted accused to whom s. 4(1) applies and who is entitled to make an argued bail application under sch. 1, part IIA (see D7.70), normal practice is to ask the prosecution if they have any objections to bail. The prosecution representative then summarises the objections (or, as the case may be, states that there are no objections). The CPS case file will contain information, supplied by the police, which sets out the objections to bail, if any, and the basis of those objections. The prosecution advocate usually has little alternative but to base the objections on this information unless a police officer connected with the case is present in court and able to provide additional information. The justices will normally be told of the accused’s previous convictions (including any convictions for failure to surrender to custody) when the prosecution give their objections to bail. Following the prosecution objections, the defence representative (or the accused in person if unrepresented) may present the arguments for bail (whether conditional or unconditional). Even where the defence choose not to make a bail application, it is submitted that the prosecution should present at least cursory objections to bail so that the court will be able to base a refusal on one or more of the reasons contained in sch. 1.

Question 54

, D7.68,

Answer 54

D7.68

The question of bail is normally dealt with on the basis of submissions from the prosecution and defence. Rule 14.5(2) requires the prosecutor to provide the court with all information in the prosecutor’s possession that is relevant to the question of bail. Where the prosecution oppose bail, the prosecutor is required to specify each statutory exception to the presumption in favour of bail on which the prosecution rely, and each consideration the prosecution argue to be relevant (r. 14.5(3)).

There is no requirement for formal evidence to be given (Re Moles [1981] Crim LR 170; Mansfield JJ, ex parte Sharkey [1985] QB 613 at p. 626, per Lord Lane CJ). Either party may, however, adduce evidence in support of their respective arguments, e.g., a police officer to substantiate the objections to bail, or proposed sureties to further the application for bail. Such witnesses give their evidence on the voir dire form of oath, to answer truthfully all such questions as the court may ask.

The prosecution will not normally reply to the application for bail by the defence. However, the prosecutor does have a right to reply to the defence submissions if this is necessary to correct alleged misstatements of fact in what the defence have said (Isleworth Crown Court, ex parte Commissioner of Customs and Excise [1990] Crim LR 859).

Having heard the prosecution objections to bail, and the answer of the defence to those objections, the court announces its decision on the grant or withholding of bail.

Question 55

the first sub-paragraph of D7.70

Answer 55

Right to Make Repeated Argued Bail Applications

D7.70

An accused who has been remanded in custody may make a fully argued application at the next hearing, regardless of whether that application repeats arguments that were placed before the previous bench (BA 1976, sch. 1, part IIA, para. 2; see D7.163). Unless the accused consents to being remanded while absent, the next hearing will take place within eight clear days (MCA 1980, s. 128(6)). (Section 128A of the MCA 1980, which permits remands in custody of up to 28 days, applies only if the accused has already been remanded in custody for the offence on at least one previous occasion.) Therefore, the wait between being refused bail on a first appearance and being able to argue again for bail on a second appearance is relatively short. However, should that second argued application fail, the BA 1976, sch. 1, part IIA, para. 3, is applicable. This provides that, at subsequent hearings, the court ‘need not hear arguments as to fact or law which it has heard previously’. This is so even though at each hearing the court should nominally consider whether the accused ought to remain in custody (sch. 1, part IIA, para. 1). Paragraph 3 effectively entitles the magistrates to treat the finding of the previous bench (that there were grounds for refusing bail) as a form of res iudicata. They may therefore refuse to hear argument in favour of bail, and need consider the question only to the limited extent of satisfying themselves that the accused has exhausted the argued bail applications to which the accused is entitled as of right and that there has been no material change of circumstances since the last argued application to enable the matter to be reopened.

The Law Commission Paper, Bail and the Human Rights Act 1998 (Law Com No. 269), contains guidance aiming to ensure that the provisions relating to a change in circumstances are applied in a way that is compatible with the ECHR. This guidance states (at paras. 12.23 and 13.33) that courts should be willing, at regular intervals of 28 days, to consider arguments that the passage of time constitutes, in the particular case before the court, a change in circumstances so as to require full argument. If the court finds that the passage of time does amount to a relevant changed circumstance, or that there are other circumstances which may be relevant to the need to detain the accused that have changed or come to notice since the last fully argued bail hearing, then a full bail application should follow in which all the arguments, old and new, could be put forward and taken into account.

Question 56

, D7.78

Answer 56

Certificates of Full Argument

D7.78

Section 5(6A) to (6C) of the BA 1976 deal with certificates of full argument. Section 5(6A) applies where a magistrates’ court adjourns a case under the PCC(S)A 2000, s. 11, or the CDA 1998, s. 52(5), or the MCA 1980, s. 10, 17C, 18 or 24C, and remands the accused in custody after hearing a fully-argued bail application (s. 5(6A)(a)). In such a case, the court must issue a certificate confirming that full argument was heard if either the court has not previously heard full argument on a bail application made by the accused in the proceedings in question, or it has previously heard such argument but is satisfied that there has been a change in circumstances or that new considerations have been placed before it (s. 5(6A)(b)). In a case where the court has heard a second or subsequent fully argued application on the basis of a change in circumstances or new considerations, the certificate must state what the change was (s. 5(6B)). The accused must be given a copy of the certificate (s. 5(6C)). The significance of the issue of a certificate of full argument is that the right to apply to the Crown Court for bail is dependent on it (Senior Courts Act 1981, s. 81(1)(g) and (1J)).

It should be noted that an adjournment during a summary trial (under the MCA 1980, s. 10) includes an adjournment for reports after conviction, so the obligation to issue a certificate may arise if the accused is remanded in custody at that stage. Moreover, the obligation to issue a certificate also applies where bail is refused on an adjournment under the PCC(S)A 2000, s. 11, for medical reports.

Question 57

, D7.80,

Answer 57

Options Open to an Accused Remanded in Custody or on Conditional Bail by Magistrates

D7.80

An accused who has been refused bail by a magistrates’ court may apply for bail to the Crown Court. An appeal can also be made against a decision of a magistrates’ court to impose conditions on bail.

Question 58

D7.83

Answer 58

Notice of Appeal

D7.83

CrimPR 14.8 applies when the accused wants to apply to the Crown Court for bail after bail has been withheld by a magistrates’ court or to appeal to the Crown Court after a magistrates’ court has refused an application by the accused (under the BA 1976, s. 3(8)(a)) to vary a condition of bail (r. 14.8(1)). Written notice of the intention to make the application must be given to the magistrates’ court, the Crown Court and the prosecutor (and any surety affected or proposed) as soon as reasonably practicable after the decision of the magistrates’ court (r. 14.8(2)). The notice must explain why bail should not be withheld, or why the condition of bail under appeal should be varied (as the case may be), should identify any further information or legal argument that has become available since the decision of the magistrates’ court and, where it is an application for bail, should attach a copy of the certificate that the magistrates heard full argument as to bail (r. 14.8(3)).

If the prosecution oppose the application, they must notify the Crown Court and the accused at once, and must serve notice of the reasons for opposing the application (r. 14.8(5)).

Unless the Crown Court directs otherwise, the application or appeal should be heard no later than the business day after notice of the application or appeal was served (r. 14.8(6)).

Question 59

-7.84

Answer 59

The Hearing

D7.84

The application may be heard in public or in private (CrimPR 14.2(2)); however, such applications are often heard in private. The application will be heard by a circuit judge or recorder. The hearing follows the pattern of a bail application in the magistrates’ court, with counsel for the prosecution summarising the objections to bail and counsel for the applicant responding to those objections.

If bail is granted to an accused who was refused it by magistrates at a remand hearing, the Crown Court may direct the accused to appear ‘at a time and place which the magistrates’ court could have directed’ and the recognizance of any surety shall be conditioned accordingly (Senior Courts Act 1981, s. 81(1H)). Any sureties required by the Crown Court may enter into their recognizances before, inter alia, an officer of the Crown Court, a police officer who is either in charge of a police station or of the rank of inspector or above, or the governor of the prison where the accused is presently detained (BA 1976, s. 8(4); CrimPR 14.14(3)(b)).

Question 60

and D7.86

Answer 60

Repeated Bail Applications in the Crown Court

D7.86

Part IIA of sch. 1 to the BA 1976 (see D7.70) applies to bail applications in the Crown Court just as it applies to applications before the magistrates. Therefore, if one application for bail has already been made to the Crown Court, a further argued application may not be presented unless there are fresh arguments or considerations to put before the court.

Question 61

D7.92

Answer 61

Prosecution Right of Appeal against Decision to Grant Bail

D7.92

The Bail (Amendment) Act 1993 (see D7.165) confers upon the prosecution the right to appeal (i) to the Crown Court against a decision by a magistrates’ court to grant bail (s. 1(1)), and (ii) to appeal to the High Court when the Crown Court grants bail other than in the context of an appeal against the grant of bail by a magistrates’ court under s. 1(1) (s. 1(1B) and (1C)).

Under s. 1(1) to (3), this right is limited to cases where:

(a) the accused is charged with, or convicted of, an offence which is (or would be in the case of an adult) punishable by imprisonment; and
(b) the prosecution is conducted by or on behalf of the DPP (this includes prosecutions conducted by the CPS), or by a prosecutor specified in the schedule to the Bail (Amendment) Act 1993 (Prescription of Prosecuting Authorities) Order 1994 (SI 1994 No. 1438), which includes the SFO; the Department of Business, Energy and Industrial Strategy; and the Department for Work and Pensions; and a universal service provider within the meaning of the Postal Services Act 2011; and
(c) before bail was granted, the prosecution made representations that bail should not be granted.

Question 62

-7.93 of

Answer 62

Procedure

D7.93

The Bail (Amendment) Act 1993 (see D7.165) and CrimPR 14.9 (see Supplement, R-129) lay down the procedural requirements with which the prosecution must comply in order to exercise its right. First, they must give oral notice of appeal at the conclusion of the proceedings in which bail was granted, and before the accused is released from custody (s. 1(4) of the 1993 Act). In Isleworth Crown Court, ex parte Clarke [1998] 1 Cr App R 257, this requirement was held to be satisfied where notice was given to the court officer about five minutes after the court rose but before the accused had been released from custody. The Divisional Court held that a delay of five minutes or so, especially where an accused had not yet been released from custody, did not bring the case into a category in which it could be said that oral notice was not given at the conclusion of the proceedings. Moreover, since notice can properly be given to the court officer, it is not necessary that the justices should themselves be in court.

Following the oral notice of appeal, the accused must be remanded in custody until the appeal is determined or otherwise disposed of (s. 1(6)). The oral notice given under s. 1(4) must be confirmed in writing, served on the court and the accused within two hours after the conclusion of the proceedings (s. 1(5)); otherwise the appeal is deemed to be disposed of (s. 1(7)) and the accused will be released on bail on the terms on which it was granted by the court when it granted bail.

In R (Jeffrey) v Warwick Crown Court [2002] EWHC 2469 (Admin), the prosecutor served the written notice of appeal three minutes late. The Divisional Court held that Parliament did not intend that the time-limit for serving notice of appeal should defeat an appeal if the prosecution had given itself ample time to serve the notice within the two-hour period, had used due diligence to serve the notice within that period, and the failure to do so was not the fault of the prosecution but was due to circumstances outside its control (per Hooper J at [11]). Furthermore, the Court said that the delay of three minutes had not caused the accused any prejudice, since he knew at the conclusion of the proceedings before the magistrates that the prosecution was exercising its right of appeal and he knew that he was being detained in custody as a result of the oral application for him to be remanded in custody until the appeal was disposed of (at [9]).

Jeffrey was followed in R (Cardin) v Birmingham Crown Court [2017] EWHC 2101 (Admin), [2018] 1 Cr App R 3 (50). The accused had been granted bail despite opposition from the prosecution; the prosecutor gave oral notice of an intention to appeal the granting of bail, and written notice of the intention to appeal the granting of bail was given to the court officer at the magistrates’ court approximately an hour later. However, the written notice was not served on the accused because he had (in error) already been sent to the prison where he was to be held pending the disposal of the prosecution appeal against the grant of bail; attempts by the court to secure service of the notice on the accused at the prison were unsuccessful. The question to be decided was whether the Crown Court had jurisdiction to hear the appeal against the grant of bail to the accused, given that the notice of appeal had not been served on him. Andrews J (at [40]) described the question to be decided as ‘whether s. 1(7) should be construed so as to deprive the appellate court of jurisdiction to reverse a decision by the magistrates to grant bail if the prosecution could not have served the defendant within the two hours, however hard it tried’. The Court ruled (at [46]) that:

… it cannot have been Parliament’s intention that the Crown should lose the opportunity to reverse a decision that was wrong in principle, with the result that a defendant who might abscond or commit further offences or interfere with prosecution witnesses was released on bail, if the reason why the notice of appeal was not served in time (or indeed at all) was outside the prosecution’s control.

The Court (at [47]) based its conclusion in part on the use of the word ‘fails’ in s. 1(7):

The word ‘fails’ in this context carries with it an implication of fault, and would not generally be used to describe the situation in which a person is unable to do something. One dictionary definition of ‘fails’ is ‘to neglect to do something’, and in our judgment that is the sense, rather than the wider sense of ‘being unsuccessful in achieving one’s goals’, in which the word should be understood in this specific context.

The appeal must be heard (by the Crown Court or the High Court, as the case may be) within 48 hours, excluding weekends and public holidays (s. 1(8)). In Middlesex Guildhall Crown Court, ex parte Okoli [2001] 1 Cr App R 1 (1), the Divisional Court construed this as meaning that the appeal hearing must commence within two working days of the date of the decision to grant bail. The Court rejected the contention that the appeal had to commence literally within 48 hours of the moment upon which oral notice had been given.

Question 63

D7.97

Answer 63

Failure to Comply with Bail

D7.97

Where an accused who has been granted bail in criminal proceedings fails to comply with the obligations imposed thereby, two main questions arise. The first is how the court should ensure that the accused will attend court for the remaining stages of the proceedings; the second is how the accused (and any sureties) will be dealt with in consequence of the breach of bail.

Question 64

-7.98

Answer 64

Powers of the Court when a Bailed Accused Fails to Appear

D7.98

When a person who is on bail fails to surrender to custody in answer to bail, the court has a number of options.

(1) The court may issue an arrest warrant (often called a ‘bench warrant’), under the BA 1976, s. 7(1). This applies whatever court the accused was bailed to attend and regardless of whether bail was granted by the custody officer at the police station or by the court itself at an earlier hearing. The usual form of warrant simply orders that the accused be arrested and brought to court. However, at the court’s discretion, the warrant may be ‘backed for bail’ (see D7.99), either with or without a requirement for sureties. Where the accused fails to appear, a bench warrant will normally be issued. It should be noted that the Justices’ Clerks Rules 2005 (SI 2005 No. 545), sch. 1, para. 3, empowers a clerk to issue a warrant of arrest, whether or not endorsed for bail, for failure to surrender to court, where there is no objection on behalf of the accused.
(2) Instead of issuing a warrant, a magistrates’ court may adjourn and extend the accused’s bail under the MCA 1980, s. 129 (see D7.73). Similarly, the Crown Court, in appropriate cases, may simply order that the case be stood out of the list and take no further action in respect of the accused (who will remain under an obligation to attend whenever the case is next listed). Such a course of action is appropriate only where the court is satisfied that there is a good reason for the accused’s non-attendance (e.g., a doctor’s certificate has been sent to the court indicating that the accused is unfit to attend).
(3) It may be possible to proceed in the absence of the accused (though it should be borne in mind that if the offence is triable either way, a magistrates’ court may try the case only with the consent of the accused, and that consent must be given at a hearing at which the accused is present unless the court is satisfied that there is a good reason for absence and the accused is represented by a lawyer who consents to summary trial on behalf of the accused: see D6.9).

Question 65

, D7.102

Answer 65

Breach of Bail Conditions

D7.102

Under s. 7(3) of the BA 1976, where an accused has been bailed to attend a court, a police officer may arrest the accused without warrant prior to the surrender date if:

(a) the officer has reasonable grounds for believing that the accused is not likely to surrender to custody; or
(b) the officer has reasonable grounds for believing that the accused has broken, or is likely to break, any condition of bail; or
(c) a surety has given written notice to the police that the person bailed is unlikely to surrender to custody and for that reason the surety wishes to be relieved of any obligations.

Following arrest under s. 7(3), s. 7(4) stipulates that the person arrested must be brought before a magistrate as soon as practicable and, in any event, within 24 hours (excluding Sundays (s. 7(7)), and so a person arrested on a Saturday under s. 7(3) need not be brought before a magistrate until the following Monday). The wording of s. 7(4) makes it clear that the person arrested must be brought before a single justice (s. 7(4)(a)); the justice need not be sitting in a courtroom. Where, however, the accused is arrested under s. 7(3) within 24 hours of the time appointed for surrender to custody, the accused must be brought before the court at which surrender to custody should have taken place (s. 7(4)(b)).

In Governor of Glen Parva Young Offender Institution, ex parte G [1998] QB 877, the accused was arrested for breach of bail conditions. He was taken to the cells of a magistrates’ court within 24 hours of arrest but was not brought before a magistrate until two hours after the expiry of the 24-hour time-limit. The Divisional Court held that the detention after 24 hours was unlawful, as s. 7(4) requires the defendant to be brought before a justice of the peace (not merely brought within the court precincts or to the court cells) within 24 hours of arrest. The importance of dealing with the accused within 24 hours was again emphasised in R (Culley) v Crown Court sitting at Dorchester [2007] EWHC 109 (Admin), where it was held that the time-limit under s. 7 is a strict one. It follows that the justice is required to complete the required investigation and decision-making in relation to the matter within the 24-hour period. If the justice fails to do so, the continued custody of the accused becomes unlawful from the moment the 24-hour period has expired. If the justice purports to remand the accused in custody after that time, the order is ultra vires and unlawful (per Forbes J at [20]).

Question 66

, D7.104

Answer 66

D7.104

Procedure where the Accused is Brought before the Court under s. 7 The question for a magistrate before whom a person is brought under the BA 1976, s. 7, is whether that person is likely to fail to surrender to custody, or else has broken or is likely to break any condition of bail (as the case may be). If of the opinion that any of those matters is established, the magistrate may remand the accused in custody (s. 7(5)). Alternatively, the magistrate may grant bail subject to different conditions. In most cases, where bail is granted under s. 7(5), more onerous conditions will be imposed.

The power to remand in custody under s. 7(5) is subject to the proviso contained in s. 7(5A). This applies where an accused who has attained the age of 18 was released on bail, and has not yet been convicted in the current proceedings. In such a case, a magistrate cannot withhold bail under s. 7 if it appears that there is ‘no real prospect that the person will be sentenced to a custodial sentence in the proceedings’.

Where the magistrate is not of the opinion that the accused is likely to fail to surrender to custody or has broken, or is likely to break, a condition of bail, bail must be granted on the same conditions (if any) as were originally imposed.

Question 67

,
D7.105,

Answer 67

D7.105

Nature of a s. 7 Inquiry In R (Hussain) v Derby Magistrates’ Court [2001] EWHC Admin 507, [2001] 1 WLR 2454, it was confirmed that there is no need for the court to hear evidence; instead it can base its decision on representations from the prosecution and the defence. Likewise, in R (Thomas) v Greenwich Magistrates’ Court [2009] EWHC 1180 (Admin), Hickinbottom J ruled that, in considering whether the accused has broken any condition of bail, a justice is entitled to rely upon hearsay material, so long as the material is properly evaluated.

In R (Vickers) v West London Magistrates’ Court [2003] EWHC 1809 (Admin), the accused was arrested and brought before the justices for failing to comply with the bail conditions. He sought to raise a defence of reasonable excuse; however, the justices ruled that no such defence exists under the BA 1976, s. 7. Gage J (at [16]–[18]) held that s. 7(5) requires a two-stage approach. First, the justice must determine whether there has been a breach of a bail condition (if there has been no breach of a condition, then the accused is entitled to be granted bail on precisely the same conditions as before); secondly, if there has been a breach, the justice is obliged to consider whether or not the bailed person should be granted bail again. In carrying out the first stage of that process, the justice must act fairly and give the accused a chance to answer the allegation of breach. That does not, however, include an inquiry as to whether the arrested person had any reasonable excuse for breaching bail (since s. 7 makes no mention of such a defence and, indeed, s. 7 does not create a criminal offence). The second stage (assuming that the justice is satisfied that there has been a breach) is the point at which the reasons for the breach of bail become relevant. At that stage, the justice must consider all the issues relating to ‘reasonable excuse’ when deciding whether or not to grant bail. The breach of bail will be a factor, but only one factor, as to whether the bailed person is granted bail again.

Question 68

D7.108

Answer 68

D7.108

No Separate Offence under s. 7 It should be emphasised that the BA 1976, s. 7, merely confers a power of arrest. It does not create a separate offence (per Hobhouse J in Rowland (14 February 1991 unreported, CA), cited by Dyson LJ in Gangar [2008] EWCA Crim 2987 at [12]).

Question 69

, D7.110

Answer 69

Offence of Failure to Surrender

D7.110

The BA 1976, s. 6, creates the offence of absconding. Under s. 6(1), a person who has been released on bail and who fails, without reasonable cause, to surrender to custody, is guilty of an offence. The burden of showing reasonable cause is on the accused (s. 6(3)). Moreover, a person who had reasonable cause for failing to surrender on the appointed day nevertheless commits an offence by failing to surrender as soon after the appointed time as is reasonably practicable (s. 6(2)). It follows that an accused who has a reasonable excuse for failing to attend court must surrender to custody as soon as reasonably practicable after that excuse ceases to apply (and commits an offence under s. 6 if not). The meaning of ‘surrendering to custody’ in s. 6(1) and (2) is considered at D7.101).

Question 70

-7.111

Answer 70

D7.111

An offence under s. 6(1) or (2) is ‘punishable either on summary conviction or as if it were a criminal contempt of court’ (s. 6(5)). An offender summarily convicted of an offence under s. 6 is liable to imprisonment for up to three months and/or a fine of any amount (s. 6(7)). A magistrates’ court which has convicted the offender of a s. 6 offence may commit the offender to the Crown Court for sentence if either it considers that the offence merits greater punishment than it has power to inflict, or it is sending the offender for trial to the Crown Court for another offence and it considers that the Crown Court should deal with the absconding as well (s. 6(6)). An offender who is committed to the Crown Court for sentence, or who is dealt with in the Crown Court as if guilty of a criminal contempt, is liable to imprisonment for up to 12 months and/or an unlimited fine (s. 6(7)).

Question 71

D7.113

Answer 71

D7.113

Procedure for Prosecuting Offences under the Bail Act 1976, s. 6 The BA 1976, s. 6(5), provides that an offence under s. 6(1) or (2) is punishable either on summary conviction or as if it were a criminal contempt of court. However, in Lubega (1999) 163 JP 221, the Court of Appeal confirmed that s. 6(5) did not have the effect of converting an offence under the Act to a contempt of court. It followed that the judge was not entitled to deal with the matter in the same way as an ordinary contempt of court.

The procedure to be followed under the BA 1976, s. 6, is set out in CrimPD III, paras. 14C.1 to 14C.8 (see Supplement, PD-30). An accused who has absconded after being granted bail by a court should normally be brought, as soon as appropriate after arrest, before the court at which the proceedings in respect of which bail was granted are to be heard (para. 14C.3). There is no requirement to apply for a summons or to issue a written charge and requisition. It is regarded as more appropriate that the court itself should initiate the proceedings by its own motion, although the prosecutor may invite the court to take proceedings (para. 14C.4). Where the court initiates proceedings (with or without an invitation from the prosecutor), the prosecutor is expected to assist the court, for example by cross-examining the accused (para. 14C.7). In practice, many magistrates’ courts informally ask absconders or their legal representative the reason for the non-appearance. If the explanation seems prima facie satisfactory, the bench indicates that no further action is necessary; otherwise the charge is put to the accused. Where a bench, on the occasion of an absconder’s first appearance after absconding, indicates, albeit informally, that no charge need be preferred, that decision is binding on subsequent benches (France v Dewsbury Magistrates’ Court (1988) 152 JP 301).