Bail Applications Flashcards
What is bail and what does bail achieve?
Bail is an order for a person to attend court on a specified date.
First question: Whether to allow the accused to keep some of their liberty (bail them) or to keep control of them (remanding in custody).
The police or the courts can grant bail. Under bail, a person is under a legal obligation to attend court on a specified date. Failure to do so is a breach of the ‘primary condition’ of bail and constitutes a distinct offence of “absconding”.
How is bail granted by the police pre-charge?
Pre-charge bail (by the police)
The police are obliged to release a suspect on bail (rather than under investigation) if they are satisfied that it is necessary and proportionate to do so. The suspect is given a date on which they must return to the police station.
Bail periods are set which the police must apply to extend if they have not completed their investigation within the relevant time period and wish for the suspect to remain on bail.
Initial bail period = 3 months
Time limit can be extended twice to 9 months
There is no presumption in favour of police bail, but the police can refuse bail only on certain narrow reasonable grounds.
How is bail granted by the police post-charge?
Bail following charge
A person charged with an offence must be released on bail to attend a magistrates’ court on the next available date the court sits, unless there are grounds for withholding bail.
The defence representative will be allowed to make representations to the Custody Officer. The Custody Officer will determine bail on same principles as applied to the grant of bail by a court, such as having substantial grounds for believing that:
- Person will fail to attend on the appointed date;
- Person will interfere with the administration of justice or investigation of any offences;
- Detention is necessary for prevention of particular harm;
(F.O.I.C)
Additional ground: The person has been charged with murder.
What is the presumptive right to bail?
General presumption in favour of bail
S4 of the Bail Act 1976: All defendants who are due to appear before a court have prima facie right to unconditional bail.
There is a presumption in favour of bail for a person charged but not convicted and appearing before a court.
The presumption in favour of bail is rebuttable and there are certain exceptions to this rule. This also will depend on the type of offence charged:
- An indictable and imprisonable offence
- A summary-only and imprisonable offence, or
- A non-imprisonable offence
What are the exceptions to the right to bail?
Exceptions to the presumption:
The presumption in favour of bail does not apply when:
- [Conviction] A defendant has been convicted of an offence and is awaiting sentence. However, if a case is adjourned for enquiries or a pre-sentence or other report, the right to bail remains.
- [Appeal] If a defendant is appealing conviction or sentence.
- [Serious offences] The court may not grant bail if a person has been charged with serious offences under CJPOA s 25 (see below) and has previously been convicted of:
murder (or attempted murder)
manslaughter (and received a custodial sentence), or
rape or certain other serious sexual offences under the Sexual Offences Act 2003 (or attempts to commit any of these offences).
Note: The instant charge and the previous conviction do not need to be for the same offence. In such circumstances, a person will be granted bail only if there are exceptional circumstances for granting bail.
- [Substantial grounds for believing] The presumption in favour of bail is lost if there is a real prospect of a custodial sentence and there are substantial grounds for believing that, if released on bail, the defendant would:
[F] Fail to surrender to custody
[O] Obstruct the course of justice
[I] Interfere with witnesses
[C] Commit an offence
N.B: This ground cannot apply if D has reached the age of 18, has not been convicted of an offence in the proceedings and there is no real prospect that the defendant will be sentenced to a custodial sentence
What are other notable exceptions to the right to bail?
- The defendant is charged with an indictable offence and the defendant was already on bail when they committed this offence
- The defendant should be kept in custody for their own protection
- The defendant is already serving a custodial sentence
- It has not been practicable to obtain sufficient information to make a bail decision due to lack of time since the proceedings were commenced, or;
- The defendant has previously been released on bail and has either failed to surrender or otherwise breached their bail conditions.
How does the court consider the grounds for refusing bail?
Court’s consideration of grounds for refusing bail
In practice, it is usually the “substantial grounds for believing” provision that is most commonly relied upon to withhold bail.
In deciding whether those “substantial grounds” for refusing bail apply, the court must consider:
- the nature and seriousness of the offence, including the likely sentence;
- the defendant’s character, community ties, previous convictions and associations
- the defendant’s bail record, including any previous failures to answer bail
- the strength of the prosecution evidence against the defendant, and
- any other factors that appear relevant.
What are the exclusions for granting bail for a summary-only imprisonable offence?
Exclusions - Bail Act Sch 1 Part 1
Granting bail for summary-only imprisonable offence
Pursuant to Bail Act Sch 1 Pt 1, a person being prosecuted for an imprisonable but summary only offence should be granted bail unless:
- The person has already failed to surrender to custody in these proceedings and the court believes that, because of that failure, the person will do so again
- The person was on bail on the date of the current offence and the court is satisfied that there are substantial grounds for believing that they would commit an offence on bail
- The court is satisfied that there are substantial grounds for believing that the person would commit an offence likely to cause an “associated person” (or cause such a person to fear) physical or mental injury
- The court is satisfied the person should be kept in custody for their own protection
- The person is already serving a custodial sentence
- The person has failed to surrender or breached bail conditions and there are substantial grounds for believing the person would commit offences, interfere with witnesses or obstruct the course of justice, or
- There is not sufficient information to make a bail decision.
NOTE: Bail should not be refused if it appears to the court that there is no real prospect of the defendant having a custodial sentence imposed if convicted in the proceedings
What are the exclusions for granting bail for a summary-only non-imprisonable offence?
Exclusions - Bail Act Sch 1 Part 2
Granting bail for summary-only non-imprisonable offence
Under Bail Act Sch 1 Pt 2, an adult seeking bail for a non-imprisonable summary offence does not have to be granted bail if:
- They have already been convicted of that offence and have previously:
- Failed to surrender in this case and the court believes that they would, for these reasons, fail to surrender to custody again, or
- Failed to surrender or breached bail conditions in this case and there are substantial grounds to believe that they would fail to surrender to custody, commit an offence on bail, interfere with witnesses or obstruct the course of justice
- The court is satisfied that they should be kept in custody for their own protection
- The person is already serving a custodial sentence, or
- The person has failed to surrender or has breached bail conditions and the court is satisfied that there are substantial grounds for believing that the person would commit an offence likely to cause an “associated person” (or cause such a person to fear) physical or mental injury.
What is the purpose behind granting conditions to bail?
Bail Conditions - Purpose
Primary duty under the Bail Act: To surrender at the appointed date and time at the specified location. Failure to do so constitutes the offence of “absconding” under Bail Act s3.
The court may impose conditions only if it is ‘necessary’ to do so to ensure that the defendant:
- Surrenders to custody;
- Does not commit offences while on bail;
- Does not interfere with witnesses or obstruct the course of justice;
- Is available for making enquiries or completing a report for sentencing purposes, or
- Attends an interview with legal representatives
There must be a link between the condition imposed and the purpose to be achieved.
What are some examples of conditions to bail?
Bail Conditions - Examples
The conditions need to be relevant, proportionate and enforceable. The most common bail conditions that are imposed, include:
- surety – where a “suitable person” guarantees that the defendant will attend court and, if not, that person will forfeit a sum of money to the court
- security – where the defendant deposits money into the court, which they will forfeit if they fail to attend
- residence – where the defendant must live and sleep at a specified address (this can be a bail hostel)
- reporting – the defendant may have to report to a specified police station at specified times, to ensure they remain in the area
- exclusion – the defendant may be excluded from certain places * non-contact – the defendant may be banned from contacting certain people
- curfew – the defendant may have to remain indoors at certain times
- electronic monitoring (the tag), and
- surrender of passport – if the court is concerned the defendant may flee the country, they can impose a condition that the defendant surrender their passport.
What is the procedure for applying for bail?
- First bail application at court
A bail decision is made when the court adjourns at any point. This may be at the end of a pre-trial hearing, when a trial is adjourned to another day or even to a later point on the same day. Sometimes, bail is the only issue the court is seeking to address (e.g where D is brought to court for breach of bail)
a) Prosecution: Will outline objections to bail and produce evidence to support those objections
b) Defence: Will make an application and suggest conditions to meet any concerns. The defence may call some evidence in support of their application. e.g a witness to confirm that they are happy to stand as surety.
c) Court’s decision: Court must give reasons for any decision to withhold bail or for imposing bail conditions. If bail is refused, the court will issue a certificate of full argument which is exactly what it claims to be
How is a further application made for bail?
- Second application for bail
A person who has been remanded in custody may only make one further application based on the same arguments on facts or law. This means they are only allowed to make 2 full applications.
Additional request for bail must relate to a material change in circumstances since the last application.
How are appeals brought against decisions on bail?
- Appeals against bail decisions
Appeals are normally brought by the defence against a refusal of bail. However, the prosecution can appeal a grant of bail in relation to any imprisonable offence or one of taking a vehicle without consent.
1) Refusal of bail: Defendant is given a “certificate of full argument” by the court clerk - they can use this to make an appeal application to the Crown Court for bail.
2) Crown Court will hear the matter afresh, usually in chambers rather than open court. The application to the Crown Court must be made in writing and served on the prosecution.
Appeals should be heard within 48 hours of initial refusal and will be heard as a complete rehearing of the bail issues. The Crown Court may hear the matter in public or in chambers (privately).
What is absconding?
Absconding - offence in its own right
If a defendant fails to attend court as and when required, they will be found to have “absconded”. Absconding is an offence in its own right and attracts its own penalty, separate to the matter that originally brought the defendant to court.
If a person has not surrendered to custody, then (in addition to any subsequent prosecution for the failure to surrender) the court may:
- Issue a “bench warrant”, directing the arrest of the defendant to bring them to court. However, this can include bail with or without conditions (backed for bail). A magistrates’ court clerk can grant such a warrant if there is no objection on the accused’s behalf
- Adjourn and extend bail, or
- If lawful to do so in the context of the case and hearing, proceed in the defendant’s absence.
What happens following a breach of bail conditions?
Breach of bail conditions - not an offence but can lead to arrest and revocation of bail
A breach of bail conditions does not create a distinct offence, but a defendant may be arrested (without warrant) if an officer has reasonable grounds for believing the defendant is not likely to surrender to custody or has breached, or is likely to breach, bail conditions.
There is also a power to arrest where a surety gives written notice that a defendant is likely to fail to surrender or the surety requests to be relieved of their obligations.
1) The defendant must then be produced before a magistrate within 24 hours (excluding Sundays) of the arrest and sooner than that if reasonably practicable.
2) The court must then determine whether the defendant is likely to fail to surrender or breach any bail conditions. If so, then the defendant may be remanded in custody or released on bail subject to different conditions. The presumption in favour of bail will be lost in such circumstances.
