Code C- Release of Persons Arrested

Question 1

Q: What is bail?

Answer 1

Bail is a form of temporary release from custody, pending trial.
It can be granted by police at the early stages of an investigation or by the court.

Question 2

Q: Who does bail favour?

Answer 2

Bail favours the suspect! Bail with conditions will be favoured over detention.

Question 3

Q: What is the duty to surrender?

Answer 3

Bail carries an obligation on the released person to attend an appointed place, on an appointed date and at an appointed time- duty to surrender.

Question 4

Q: What is conditional bail?

Answer 4

Conditions attached to bail, which further restrict the activities of the suspect.
A suspect that breaches any of these additional conditions, may be liable to arrest and brought before the court or custody officer.

Question 5

Q: What Act governs bail?

Answer 5

Bail Act 1976, which is reflected in PACE.

Question 6

Q: What is the general rule on bail?

Answer 6

S38 PACE- when an adult suspect is charged at the police station, then unless specific circs apply, the custody officer must order his release from police detention either on bail or unconditional release with no restrictions.

Question 7

Q: What are the exceptions to release and where bail may not be appropriate?

Answer 7

General rule favouring release following charge is subject to exceptions.
S25 Criminal Justice and Public Order Act 1994- provides that bail may not be granted where a per-son is charged with:
- Murder
- Attempted murder
- Manslaughter
- Rape or attempted rape
- Offences under Sexual Offences Act 2003
If he has been previously convicted of any of these offences, unless there are exceptional circum-stances.
A person charged with murder may not be granted bail except by the order of a Crown Court judge. This does not apply to attempted murder or conspiracy to murder.

Question 8

Q: What are the grounds for when a custody officer need not grant bail?

Answer 8

S38 PACE provides that where an arrested person is charged with an offence, the custody officer need not grant bail if the person arrested is not an arrested juvenile and one or more of the following grounds apply:
(a) the person’s name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished is his/her real name or ad-dress
(b) the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail
(c) in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him/her from committing an offence
(d) in the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him/her from causing physical injury to any other person or from causing loss of or damage to property
(e) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him/her from interfering with the administration of justice or with the investigation of offences or of a particular offence
(f) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his/her own protection; or
(g) the person is charged with murder

Question 9

Q: What if a person is 18 and over?

Answer 9

In the case of a person aged 18 or over, where a sample may be taken from the person under s63B (provision for drug testing in force for that police station or area), the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable the sample to be taken. A person may be detained for up to 6 hours max.

Question 10

Q: What if the person arrested is a juvenile?

Answer 10

If the person arrested is a juvenile and one or more of the following grounds apply:
- The juvenile has committed one of the offences above
- The custody officer has reasonable grounds for believing that the arrested juvenile ought to be detained in his own interests/welfare

Question 11

Q: What must the custody officer consider when making his decision?

Answer 11

Schedule 1, para 2(1). D will not be granted bail if the court/custody officer is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would:
- Fail to surrender to custody; or
- Commit an offence while on bail; or
- Interfere with witnesses or otherwise obstruct the course of justice, whether in relation to him or any other person
Schedule 1, para 9 provides that in taking decisions, the court/custody officer will have regard to such of the following considerations as appear to be relevant:
(a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it)
(b) the character, antecedents, associations and community ties of the defendant
(c) the strength of the evidence against him
(d) any other considerations which appear relevant to the custody officer should be also be borne in mind

Question 12

Q: What steps does the custody officer have to take when bail is refused?

Answer 12

S38(3) and (4)- custody officer must inform the detained person of the reasons why and make an entry as to these reasons in the custody record.
This must be done as soon as the decision to refuse bail is made, but can be delayed if the person is incapable of understanding, is violent or is in urgent need of medical attention.

Question 13

Q: Once the custody officer decides to grant bail, what must he then decide?

Answer 13

Must decide whether to attach conditions to bail and if so what conditions those should be.
Power to attach conditions to bail is taken from s3A Bail Act- conditions may only be attached if it appears it is necessary to do so for the purpose of:
- preventing that person from failing to surrender to custody
- for the purpose of preventing that person from committing an offence while on bail
- for the purpose of preventing that person from interfering with witnesses or otherwise ob-structing the course of justice, whether in relation to himself or any other person
- for that person’s own protection, or if he is a child or young person, for his own welfare or in his own interests

Question 14

Q: What conditions may be imposed on the suspect?

Answer 14

Where a custody officer decides to grant bail, one or more of the requirements in s3A(5)(a)-(d) may be imposed:
- the accused is to live and sleep at a specified address
- the accused is to notify any changes of address
- the accused is to report periodically (daily, weekly or at other intervals) to his/her local police station
- the accused is restricted from entering a certain area or building or to go within a specified distance of a specified address
- the accused is not to contact (whether directly or indirectly) the victim of the alleged of-fence and/or any other probable prosecution witness
- the accused is to surrender his/her passport
- the accused’s movements are restricted by an imposed curfew between set times (i.e. when it is thought the accused might commit offences or come into contact with witnesses)
- the accused is required to provide a surety or security

Question 15

Q: What was established in the case of McDonald v Dickson in relation to bail and deprivation of liberty?

Answer 15

Held that a condition for an accused to remain in his dwelling at all times except between 10 am and 12 noon did not amount to detention or deprivation of his liberty and did not constitute an infringement of his right to liberty under the ECHR A5.

Question 16

Q: What was established in the case of Carson in relation to bail and deprivation of liberty?

Answer 16

A bail condition prohibiting a person from residing at their home address was held to be disproportionate even where the police were investigating a serious offence of racially aggravated harassment against neighbours.

Question 17

Q: Can bail be varied or conditions removed once set?

Answer 17

Yes- power to vary or remove conditions is provided by s3A Bail Act 1976.
The accused is entitled to bring an application to vary under this Act. The application can be made to the custody officer that granted bail or another custody officer serving at the same police station. At this request, a custody officer may vary the conditions of bail and in doing so he may impose conditions or more onerous conditions.

Question 18

Q: What steps must a custody officer take if he imposes or varies conditions of bail?

Answer 18

Must include a note of the reasons in the custody record and give a copy of that note to the person in relation to whom the decision was taken.

Question 19

Q: Can an accused apply elsewhere to vary conditions of police bail?

Answer 19

The accused may also apply to the magistrate’s court under s43B(1) Mag’s Court Act 1980.

Question 20

Q: When can the prosecution apply to the magistrate’s court to reconsider or vary the conditions of bail?

Answer 20

The prosecution may apply to the magistrates’ court to reconsider bail and vary the conditions of bail, impose conditions in respect of bail that has been granted unconditionally, or withhold bail.
This only applies to bail granted by the magistrates’ court or a constable and only in relation to offences triable on indictment or either way.
The application can only be on the basis of information that was not available to the court or constable when the original decision was taken.

Question 21

Q: What are sureties?

Answer 21

S8 Bail Act 1976- people who assure or guarantee that the accused with comply with his conditions/obligations. They agree to be responsible for ensuring the accused turns up at court at the appointed time.
They put up money (recognisance) to secure the accused’s surrender and they make a solemn promise where they agree to forfeit the money if the accused fails to surrender.

Question 22

Q: What is considered when determining a sureties suitability?

Answer 22

S8(2) In considering the suitability for that purpose of a proposed surety, regard may be had (amongst other things) to—
(a) the surety’s financial resources
(b) his character and any previous convictions of his; and
(c) his proximity (whether in point of kinship, place of residence or otherwise) to the person for whom he is to be surety

Question 23

Q: Can someone be their own surety?

Answer 23

A person cannot stand at his/her own surety (s3(2)).

Question 24

Q: When will forfeiture of the money take place? What will the court consider?

Answer 24

For forfeiture to take place there is no requirement to show the surety had any involvement in the accused non-appearance. Forfeiture is at the court’s discretion and sometimes they are lenient- they recognise that there was nothing further the surety could have done to ensure the accused shows up and it would be unjust to forfeit the money.
The court will also consider the sureties means at the time of enforcement rather than the time they agreed to be a surety. This means if someone no longer has the means to pay they will not be forced to pay up.

Question 25

Q: Who decides if a surety is necessary?

Answer 25

The question as to whether or not sureties are necessary is at the discretion of the custody officer (or court).

Question 26

Q: Does the surety bear any legal responsibility?

Answer 26

No! if the accused commits further offences, the surety is not responsible.

Question 27

Q: What if a surety no longer wants to be a surety through fear the accused will not show up?

Answer 27

Bail Act provides that a surety may notify a constable in writing that the accused is unlikely to surrender to custody and for that reason he/she wishes to be relieved of his/her obligations as surety.
This written notification provides a constable with the power to arrest the accused without warrant (s. 7(3)).

Question 28

Q: What is security?

Answer 28

A person granted bail may be required to give security for his/her surrender to custody (Bail Act 1976, s. 3(5)).
Security is the word used to describe the money or some other valuable item which will be liable to forfeiture in the event of non-attendance in answer to bail.
A security may be required as a condition of bail but only if it is considered necessary to prevent the person absconding.