Bail and remands. Bail; conditions to be applied under what circumstances. Flashcards
Duty to Surrender to Custody
Conditions of Bail
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.
However, the court may impose a wide range of additional requirements by granting bail subject to specific conditions, known as ‘conditional bail’
Duty to Surrender to Custody
A person granted bail in criminal proceedings is under a duty to surrender to custody.
‘Surrender to custody’ is defined in s. 2(2) as surrendering into the custody of the court the accused has been bailed to attend.
The date fixed for surrender to custody may be varied to a later date.
Failure without reasonable cause to surrender to custody is an offence under the BA 1976, s. 6.
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) or may be required to give security for his or her surrender to custody, under s. 3(5)
Conditions that May be Imposed by the Court
By virtue of the BA 1976, s. 3(6) 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).
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. 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.
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.
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.
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.
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.
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.
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.
Electronic Monitoring
Electronic monitoring (colloquially known as ‘tagging’) is available as a condition of bail under the BA 1976, s. 3.
This condition is often combined with a curfew condition.
Sureties
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.
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).
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..
Deposit of Security
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.
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.
Applications to Vary the Conditions of Bail
Where bail has been granted subject to conditions, the accused may apply for the conditions to be varied.
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.
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.
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.
if there is to be a hearing, it should take place no later than the fifth business day after the application was served.
Although the BA 1976, s. 5(3), which requires the court to give reasons for specified bail decisions does not expressly impose a duty to give reasons for a decision refusing to vary bail conditions, the common law requires that reasons for such a refusal must be ‘legally adequate’.
Breach of Bail Conditions
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.
