Bail conditions and applications (W4)

Question 1

D7.45 - Conditions of bail

Answer 1

• BA 1976, s.3
• Where the court grants unconditional bail, the accused has simply to surrender to custody at the date and time specified (s.3(1))
• However, the court can impose additional requirements by granting conditional bail (s.3(6))
• CrimPR 14.6 applies where the court may impose a bail condition requirement with which the accused must comply with whilst in another EU Member State
• r 14.7 applies where another EU Member State requests the monitoring and enforcement of an accused’s compliance with a supervision measure imposed by that state.

Question 2

D7.46 - Duty to surrender to custody

Answer 2

• A person granted bail is under a duty to surrender to custody (BA 1976 s.3(1))
• Surrender to custody = surrendering into the custody of the court the accused has been bailed to attend (s.2(2))
• Failure without reasonable excuse to surrender is an offence under s.6

Question 3

D7.47 - Conditions that the court can impose

Answer 3

Any requirements that the court considers 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 obstruct the course of justice;
(d) is available for the making of inquiries or reports to assist in sentencing;
(e) attends an interview with a legal representative.
Conditions may also be imposed for the protection or welfare of the accused.

Question 4

D7.48 - Meaning of ‘necessary’

Answer 4

• Not obliged to have substantial grounds
• It is enough that they perceive a real and not fanciful risk of for example, an offence being committed, if the condition is not imposed.
• So the court have a wide discretion.

Question 5

D7.49 - Commonly imposed conditions

Answer 5

(a) a condition of residence, often that the accused is to live and sleep at a specified address
(b) notify any changes of address to the police
(c) reporting regularly to a local police station
(d) curfew
(e) condition not to enter a certain area/building or go within a specified distance of an address
(f) condition not to contact the victim or any other prosecution witness
(g) accused’s passport must be surrendered to the police

Question 6

D7.51 - Electronic monitoring

Answer 6

‘Tagging’ is available as a condition of bail and is often combined with a curfew.

Question 7

D7.55 - Sureties

Answer 7

A person granted bail 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))

Question 8

D7.60 - Deposit of security

Answer 8

• A person cannot stand as surety for themselves
• However, persons granted bail may be required to give security for their surrender to custody, i.e. deposit with the court some money or valuable item which will be liable to forfeiture in the event of non-attendance (BA 1976, s.3(5))
• This may be required as a condition of bail only if it is considered necessary to prevent absconding.

Question 9

D7.65 - Applications to vary the conditions of bail

Answer 9

• Where bail has been granted subject to conditions, the accused may apply for those conditions to be varied (BA 1976, s.3(8)(a)).
• The application should be made to the court the accused is bailed to, or where the accused has been sent to the Crown Court for trial or sentence, to the Crown Court.
• The prosecution can also make such an application (s.3(8)(b))
• A party who wants to apply for a variation must give advance notice to the court and to the other party, explaining what is sought and why.
• The applicant must be served not less than 2 business days before any hearing at which the applicant wants the court to consider it.
• The court may determine an application to vary without a hearing if both parties agree to it
• If there is a hearing, it should take place no later than the 5th business day after the application was served
  (CrimPR 14.7)

Question 10

D7.66 - Breach of bail conditions

Answer 10

Breach of any condition may result in the accused being arrested under the BA 1976 s.7(3)

Question 11

D7.67 - Procedure to be followed for bail applications (CrimPR Part 14)

Answer 11

• 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.
• When the accused is in custody, bail may be considered in their absence if they have waived the right to attend, or if they were present when bail was refused on a previous occasion and has been in custody since then.
• A bail hearing may take place in public or private.
• Assuming the presumption in favour of bail applies under BA 1976 s.4(1), the onus is on the court to justify any refusal of bail in accordance with sch.1.

Question 12

D7.68 - Prosecution and defence role in bail applications

Answer 12

• Normal practice is to ask the prosecution if they have any objections to bail. The prosecution representative then summarises the objections.
• Following prosecution objections, the defence representative may make arguments for bail.
• The prosecutor is required to provide the court will all information in the prosecutor’s possession that is relevant to bail (Rule 14.5(2))
• There is no requirement for formal evidence to be given (Re Moles) although it sometimes might be
• The prosecutor will not normally reply to the defence once they have made their submissions but they are allowed to if necessary to correct alleged misstatements of facts

Question 13

D7.70 - Right to make repeated bail applications to a magistrates’ court

Answer 13

• An accused who has been remanded in custody may make a fully argued application at the next hearing, regardless of whether it repeats arguments placed before the previous bench.
• The next hearing will take place within 8 clear days (MCA 1980, s.128(6))
• However, they cannot make the same arguments a third time unless there has been a manifest change in circumstances.

Question 14

D7.78 - Certificate of full argument

Answer 14

• Applies where a magistrates court adjourns a case and remands the accused in custody after hearing a fully-argued bail application
• In such a case, the court must issue a certificate confirming the 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 new considerations have been placed before it.
• The certificate must state what the change was.
• The accused must be given a copy of the certificate.
• The significance of the certificate is that the right to apply to the Crown Court for bail is dependent on it.
• An adjournment during a summary trial includes an adjournment for report after conviction, so the obligation to issue a certificate may arise at that stage.

Question 15

D7.80 - Applying to the Crown Court for bail

Answer 15

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 16

D7.83 - Notice of appeal to Crown Court

Answer 16

• Written notice of the intention to appeal must be given to the magistrates’ court, the Crown Court, and the prosecutor 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, identify any further information or legal argument that has become available since the decision of the magistrates’ court, and 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 reasons for opposing (r 14.8(5))
• Unless the Crown Court directs otherwise, the application/appeal should be heard no later than the business day after notice of application or appeal was served (r 14.8(6))

Question 17

D7.84 - Hearing in the Crown Court

Answer 17

• Can be made in public or private, but most often in private
• Prosecution summarises objections to bail and defence responds to those objections
• If bail is granted, 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
• Any sureties required by the Crown Court may enter into their recognizance before an officer of the Crown Court, a police officer who is either in charge of a police station or of the rank inspector or above, or the governor of the prison where the accused is presently detained (BA 1976, s.8(4))

Question 18

D7.86 - Repeated bail applications in the Crown Court

Answer 18

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 19

D7.92 - Prosecution right of appeal against decision to grant bail

Answer 19

Bail (Amendment) Act 1993

• Prosecution has the right to appeal (i) to the Crown Court against any decision by a magistrates’ court to grant bail 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)
• This right is limited to cases where:
  (a) the accused is charged with, or convicted of, an offence which is punishable by imprisonment; and
  (b) the prosecution is conducted by or on behalf of the DPP or by a specified prosecutor i.e. the SFO, Department of Business, Energy and Industrial Strategy, and the Department for Work and Pensions, and a universal service provider within the Postal Services Act 2011; and
  (c) before bail was granted, the prosecution made representations that bail should not be granted.

Question 20

D7.93 - Procedure for prosecution appeal against bail

Answer 20

(1) 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
(2) The accused must be remanded in custody until the appeal is determined or otherwise disposed of.
(3) The oral notice given must be confirmed in writing, served on the accused and the court within 2 hours after the conclusion of the proceedings otherwise the appeal is deemed to be disposed of and the accused will be released on bail.
(4) The appeal must be heard within 48 hours, excluding weekends and public holidays i.e. within 2 working days

Question 21

D7.98 - Powers of the court when a bailed accused fails to appear

Answer 21

(1) The court may issue an arrest warrant under the BA 1976 s.7(1).
(2) A magistrates’ court may adjourn and extend the accused’s bail under the MCA 1980, s.129. The Crown Court may simply order that the case be stood out of the list and take no further action. This is only appropriate where the court is satisfied there is a good reason for the accused’s non-attendance.
(3) It may be possible to proceed in the absence of the accused (though if the offence is triable either way, a magistrates’ court must have the consent of the accused, given at a hearing at which the accused is present unless the court is satisfied that there is a good reason for the absence and the accused is represented by a lawyer who consents to summary trial on their behalf)

Question 22

D7.102 - Arresting the accused without warrant prior to the surrender date

Answer 22

This can be done under s.7(3) BA 1976 if:

(a) the officer has reasonable grounds for believing that the accused is not likely to surrender to custody;
(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.

• The person arrested must be brought before a magistrate as soon as practicable and in any event within 24 hours, excluding Sundays (s.7(4))
• Where the accused is arrested within 24 hours of the time appointed for surrender to custody, the accused must be brought before the court at which surrender should have taken place (s.7(4)(b))

Question 23

D7.104 - Procedure where the accused is brought to court under s.7

Answer 23

• The question for a magistrate before whom a person is brought under s.7 BA 1976 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
• If any of those matters is established, the magistrate may remand the accused in custody (s.7(5)) or grant bail subject to different conditions (usually more onerous ones)
• A magistrate cannot withhold bail under s.7 if the accused is over the age of 18 when they were released on bail, has not yet been convicted in the current proceedings, and there is no real prospect they will get a custodial sentence.
• Where the magistrate is not of the opinion that bail is/will be broken or that the accused will fail to surrender, they must grant bail on the same conditions as were originally in place.

Question 24

D7.105 - s.7 Inquiry

Answer 24

• There is no need for the court to hear evidence; they can base their decision on representations from the prosecution and defence.
• Two stage approach: (1) if there has been a breach, (2) if there has been a breach, whether the accused should be granted bail again

Question 25

D7.108 - No separate offence under s.7

Answer 25

s.7 merely confers a power of arrest, it does not create a separate offence.

Question 26

D7.110 - Offence of failure to surrender

Answer 26

BA 1976, s.6

• 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 for showing reasonable cause is on the accused.
• An accused who had reasonable cause for failing to surrender on the appointed day nevertheless commits an offence by refusing to surrender as soon after the appointed time as is practicable.

Question 27

D7.111 - Punishment of failure to surrender under s.6

Answer 27

• Punishable either on summary conviction or as if it were a contempt of court
• Liable to imprisonment for up to 3 months and/or a fine of any amount
• A magistrates’ court who has convicted the offender of a s.6 offence may commit the offender to the Crown Court for sentence if it considers that the offence merits greater punishment, or it is sending the offender to the Crown Court for another offence and considers it should deal with the absconding as well
• An offender committed to the Crown Court is liable for imprisonment for up to 12 months and/or unlimited fine.

Question 28

D7.113 - Procedure for prosecuting s.6 offences

Answer 28

• Accused should normally be brought before the court as soon as is appropriate after arrest.
• There is no requirement for a summons or written charge and requisition
• The prosecutor is expected to assist the court, e.g. by cross-examining the accused
• Many magistrates’ courts informally ask absconders or their legal representatives the reason for their non-appearance. If the explanation seems satisfactory, no further action is taken, but if not, the charge is put to the accused.