Bail and remands. the presumption in favour of bail and the occasions when it does not apply

Question 1

Bail
Introduction

Answer 1

Bail in criminal proceedings is governed by the Bail Act 1976.

‘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’.

This section is chiefly concerned with bail from magistrates’ courts and the Crown Court.

Question 2

Bail by Magistrates’ Courts

Answer 2

A magistrates’ court, when adjourning a case, may remand the accused.

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.

Where a magistrates’ court sends an accused to the Crown Court for trial under the CDA 1998, s. 51 (Crime and Disorder Act 1998, Sending cases to the Crown Court: adults) the accused may be kept in custody or released on bail.

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 Administrative Court by way of case stated.
A person charged with murder may not be granted bail except by order of a Crown Court judge.

Question 3

Bail by the Crown Court

Answer 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. 10, 17C, 18or24C, provided the magistrates’ court has granted a certificate that, before refusing bail, it heard full argument.

Question 4

Bail Jurisdiction in Murder Cases

Answer 4

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.

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.

These provisions apply whether or not the accused is charged with any offences in addition to the murder charge.

Question 5

Presumption in Favour of Bail

Answer 5

Section 4(1) of the BA 1976 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.

(b) who has been convicted of an offence and whose case is adjourned for reports before sentencing.

(c) who has been brought before the court for alleged breach of a requirement of a community order.

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.

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, 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.

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 6

Bail Following Indication of Guilty Plea at ‘Plea before Venue’ Hearing and then committed for sentence in the crown court.

Answer 6

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 7

Exceptions to the Presumption in Favour of Bail.
No Bail for Homicide or Rape if Previous Conviction.

Answer 7

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.

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 the defendant 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 8

Murder

Answer 8

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 9

Risk of Absconding, Further Offences or Interference with Witnesses
Refusing Bail to an Accused Charged with an Indictable Offence

Answer 9

Part I of sch. 1 to the 1976 Act 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.

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 is applicable.

The first — and most commonly relied on — ground subdivides into three.

As regards offenders convicted but remanded for reports, there is a further ground on which reliance may also be placed. The statutory grounds for refusing bail are as follows.

Question 10

Bail Act 1976, sch. 1, para. 2

Answer 10

(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.

Question 11

Standard of Proof

Answer 11

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.

‘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 12

No Real Prospect of a Custodial Sentence

Answer 12

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 withheld on any of the grounds set out in para. 2.

Question 13

Relevant Factors

Answer 13

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.

(b) the character, antecedents, associations and community ties of the accused.

(c) the accused’s ‘record’ for having answered bail in the past.

(d) the strength of the evidence against the accused.

(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

Question 14

Nature and seriousness of offence

Answer 14

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.

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.

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.’

‘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’.

Question 15

Character and antecedents

Answer 15

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

Question 16

Associations and community ties

Answer 16

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.

Question 17

Strength of the prosecution evidence

Answer 17

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.

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.

Question 18

Risk of injury to someone else

Answer 18

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.

‘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 19

Other Grounds for Withholding Bail

Answer 19

Part I of sch. 1 to the BA 1976 sets out other grounds for withholding bail:

risk of injury to an ‘associated person’

where the accused is already on bail for another offence

for the accused’s own protection

where the accused is already serving a custodial sentence for another offence

where the court has insufficient information

where the accused has absconded in the present proceedings

Additionally, where the accused is charged with murder, para. 6ZA restricts the circumstances in which bail can be granted.

Question 20

Domestic Violence: Risk to an ‘Associated Person

Answer 20

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).

Question 21

Accused Already on Bail

Answer 21

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.

Question 22

Own Protection

Answer 22

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’.

Question 23

Already in Custody

Answer 23

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.

Question 24

Insufficient Time

Answer 24

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 and so does not restrict further applications for bail.

Question 25

Absconded in the Present Proceedings

Answer 25

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.

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.

Question 26

Bail in Cases Involving Abuse of Drugs

Answer 26

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) 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.

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

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 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.

Question 27

Refusing Bail to an Accused Charged with Summary and Non-Imprisonable Offences

Imprisonable Summary Offences

Answer 27

Under the BA 1976, sch. 1, part I, para. 1(2) 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.

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 D7.25), 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, (Liability to arrest for absconding or breaking conditions of bail) 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 I, paras. 6A to 6C would otherwise be applicable were the current offence an indictable one (para. 9).

Question 28

No Real Prospect of a Custodial Sentence

Answer 28

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 of18, 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 29

Non-imprisonable Offences

Answer 29

Part II of sch. 1 to the BA 1976 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), 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.