Release of Persons on Bail

Question 1

Who authorises a release on bail?

Answer 1

Custody officer/ sergeant

Question 2

What is the applicable bail period?

Answer 2

The period of three months beginning with the person’s bail start date

Question 3

When would an applicable bail period be more than three months?

Answer 3

In a Financial Conduct Authority case, HMRC case, National Crime Agency case or Serious Fraud office case, the applicable bail period will be six months beginning with the person’s bail start date

Question 4

Can bail conditions be varied?

Answer 4

Section 34(A) of the Bail Act 1976 states that where a custody officer has granted bail in criminal proceedings, they or another custody officer serving at the same police station may, at the request of the person to whom it was granted, vary the conditions of bail and, in doing so, they may impose conditions or more serious conditions.

Question 5

What changes did the Police, Crime, Sentencing and Courts Act 2022 make to the Bails Act 1976 and the Police and Criminal Evidence Act 1984 and the Criminal Justice and Public Order Act 1994?

Answer 5

The 2022 act establishes a neutral position within the legislation, by removing the presumption against pre-charge bail. Release under investigation is still an option in terms of pre-charge release. Bail can be granted for juveniles.

Question 6

Can people be bailed to non-designated police stations?

Answer 6

Yes

Question 7

Section 30C(2) PACE 1984 (street bail)

Answer 7

If a person is required to attend a police station which is a non-designated police station, he must be:
a) released or
b) taken to a designated police station, not more than six hours after his arrival.

Question 8

How should a person be notified that a decision has been made not to prosecute?

Answer 8

• the custody officer is under a duty to notify a person released under s.34, 37 or 37CA PACE 1984
• a notice in writing must be given to the person
• this does not prevent the prosecution of the person for an offence if new evidence comes to light after the notice was given
• these provisions also apply for a person released after the expiry of 24 hours detention under s.41(7)

Question 9

What are the three occasions under s.7(3) Bail Act 1975 where a constable may arrest a person released on bail?

Answer 9

1) if the constable has RGB that the person is not likely to surrender custody
2) if the constable has RGB that the person is likely to break any of the conditions of their bail or has RGS that the person has broken any of those conditions or
3) in a case where that person was released on bail with one or more surety or sureties, if a surety notifies a constable in writing that the person is unlikely to surrender to custody and for that reason the surety wishes to be relieved of their obligations as a surety/

Question 10

What is a surety?

Answer 10

• the purpose of securing that an offender surrenders to custody
• regard for the purpose of a proposed surety may be: the surety’s financial resources, his character and any previous convictions of his and his proximity (whether in point of kinship, place of residence or otherwise) to the person for whom he is to be surety.
• the question of whether or not sureties are necessary is at the discretion of the custody officer/ court
• a person cannot stand as his/ her own surety
• there is no power to grant conditional bail with a surety to ensure no further offending - their only purpose is to secure surrender to custody
• where no surety, or suitable surety, is available, the custody officer can fix the amount of cash or security in which the surety is to be bound for the purpose of enabling the recognisance of the surety to be entered into subsequently
• where the court grants bail but is unable to release the person where no surety/ suitable surety is available, the court may fix the amount in which the surety is to be bound, and the recognisance of the surety may later be entered into before a police officer who is either of the rank of inspector or above or who is in charge of a police station or other person as specified in s. 8(4) in conjunction with the Criminal Procedure Rules 2020, r. 14.14.
• The normal consequence for a surety, where an accused fails to answer bail, is that he/she is required to forfeit the entire cash or security in which he/she stood surety. The power to forfeit recognizances is a matter for a court (Magistrates’ Courts Act 1980, s. 120).
• It is not necessary to prove that the surety had any involvement in the accused’s non-appearance (R v Warwick Crown Court, ex parte Smalley [1987] 1 WLR 237). However, in R v York Crown Court, ex parte Coleman (1988) 86 Cr App R 151, it was held that where a surety had taken all reasonable steps to ensure the accused’s appearance the recognizance ought not to be forfeited.
• The Bail Act 1976 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)).
• Where a parent or guardian of a person under the age of 17 consents to be surety, they may be required to secure that the person complies with any requirement imposed by virtue of s. 3(6) (see para. 1.10.7.1). No requirement shall be imposed on the parent or guardian where it appears that the person will attain the age of 17 before the time to be appointed for their surrender to custody (s. 3(7)).

Question 11

Offence of Absconding by Person Released on Bail - The Bail Act 1976 S.6

Answer 11

• if a person who has been released on bail in criminal proceedings fails, without reasonable cause, to surrender to custody he shall be guilty of an offence
• if a person who:
  a) has been released on bail in criminal proceedings and
  b) having reasonable cause therefor, has failed to surrender to custody, fails to surrender to custody at the appointed place as soon after the appointed time as is reasonably practicable, he shall be guilty of an offence

This applies to where:
- the police grant bail to appear at a police station
- the police grant bail to appear at court on the first appearance
- the court grants bail to the defendant to return to court at a later date

The burden of proof in relation to showing ‘reasonable cause’ is a matter for the accused.

A person who has ‘reasonable cause’ still commits the offence if he/she fails to surrender ‘as soon after the appointed time as is reasonably practicable’. Where an accused was half an hour late in appearing at court it was held that he/she had absconded (R v Scott [2007] EWCA Crim 2757). In Laidlaw v Atkinson (1986) The Times, 2 August, it was held that being mistaken about the day on which one should have appeared was not a reasonable excuse. Also, there is no requirement on the court to inquire as to whether a person arrested for failing to comply with bail conditions had any reasonable excuse for breaching bail (R (On the Application of Vickers) v West London Magistrates’ Court [2003] EWHC 1809 (Admin)).

• Failure to give to a person granted bail in criminal proceedings a copy of the record of the decision does not constitute reasonable cause for that person’s failure to surrender to custody (s. 6(4)).

Failing to answer bail granted by a police officer is a summary offence and the decision to initiate proceedings is for the police/prosecutor using the written charge and requisition procedure. Such an offence may not be tried unless proceedings are commenced either within six months of the commission of the offence, or within three months: (a) after the person surrenders to custody at the appointed place; (b) is arrested, or attends at a police station, in connection with the bail offence or the offence for which he/she was granted bail; or (c) the person appears or is brought before a court in connection with the bail offence or the offence for which he/she was granted bail (s. 6(12)–(14)).

Question 12

Can someone be remanded by the court for failure to surrender following bail?

Answer 12

• Following arrest under s. 7(3), the person arrested must be brought before a magistrate as soon as practicable, and in any event within 24 hours (s. 7(4)). Note that the section clearly states that the person must be brought before a magistrate (justice) and not brought merely to the court precincts
• This requirement is absolute and requires that a detainee be brought not merely to the court precincts or cells but actually be dealt with by a justice within 24 hours of being arrested (R (On the Application of Culley) v Crown Court sitting at Dorchester [2007] EWHC 109 (Admin)). The 24 hours is calculated from the time of arrest and not the time detention was authorised

Question 13

Can a person be remanded into police custody for the purposes of enquiring into other offences other than the offence for which they appear before a court?

Answer 13

Section 128 of the Magistrates’ Courts Act 1980 provides that a magistrates’ court may remand a person to police custody for a period not exceeding three clear days (24 hours for a person under 18) for the purposes of enquiries into other offences (other than the offence for which he/she appears before a court).

• as soon as the need ceases he/she must be brought back before the magistrates (s. 128(8)(b));
• the conditions of detention and periodic review apply as if the person was arrested without warrant on suspicion of having committed an offence (s. 128(8)(c) and (d)).

Question 14

What is a person’s bail start date?

Answer 14

The day after the day on which the person was arrested for the relevant offence.

Question 15

Who authorises street bail and the conditions attached to the street bail?

Answer 15

An inspector or above

Question 16

What are the four conditions that must be satisfied to extend the initial limit of the applicable bail period in standard cases? S.47ZD

Answer 16

Section 47ZD allows a relevant officer (an officer of inspector rank or above (s. 47ZD(6)) to extend bail from three months to six months where the conditions A to D set out in s. 47ZC are met. The relevant officer must arrange for the suspect or their legal representative to p. 294↵be invited to make representations, and must consider any that are made before making a decision. The suspect (or their representative) must be informed of the outcome. The four conditions outlined in s. 47ZC are:

Condition A—the decision-maker has reasonable grounds for suspecting the person in question to be guilty of the relevant offence.

Condition B—the decision-maker has reasonable grounds for believing:

(a)
in a case where the person in question is or is to be released on bail under s. 37(7)(b) or 37CA(2)(b), that further time is needed for making a decision as to whether to charge the person with the relevant offence, or

(b)
otherwise, that further investigation is needed of any matter in connection with the relevant offence.

Condition C—the decision-maker has reasonable grounds for believing:

(a)
in a case where the person in question is or is to be released on bail under s. 37(7)(b) or 37CA(2)(b), that the decision as to whether to charge the person with the relevant offence is being made diligently and expeditiously, or

(b)
otherwise, that the investigation is being conducted diligently and expeditiously.

Condition D—the decision-maker has reasonable grounds for believing that the release on bail of the person in question is necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which are, or are to be, imposed).

Decision maker - Inspector
Further decision maker - Superintendent

Question 17

What are the four conditions that must be satisfied to extend the initial limit of the applicable bail period in non-standard cases? S.47ZDB

Answer 17

If the applicable bail period in relation to a person is the period mentioned in s. 47ZDB(1)(a), that period has not ended and an appropriate decision-maker is satisfied that conditions. A to D are met in relation to the person, they may authorise the applicable bail period in relation to the person to be extended so that it ends at the end of the period of 12 months beginning with the person’s bail start date.

The person or the person’s legal representative must be informed that a determination is to be made, any representation must be considered and they must be informed whether an authorisation has been given in relation to the person.

An extension under s. 47ZDB relates to cases involving the FCA, HMRC, NCA or SFO (s. 47ZB(1)(a)) and an initial ‘applicable bail period’ of six months.

In relation to conditions A to D which fall to be considered by virtue of s. 47ZDB, the ‘decision-maker’ will be the ‘appropriate decision-maker’.

Question 18

Who are the appropriate decision makers in non-standard cases for bail?

Answer 18

Section 47ZDB(6) states that the ‘appropriate decision-maker’ means:

(a)
in an FCA case, a member of staff of the Financial Conduct Authority who is of the description designated for the purposes of this section by the Chief Executive of that Authority,

(b)
in an HMRC case, an officer of Revenue and Customs of a grade that is equivalent to the rank of superintendent or above,

(c)
in an NCA case, a National Crime Agency officer of a grade that is equivalent to the rank of superintendent or above, and

(d)
in an SFO case, a member of the Serious Fraud Office who is of the Senior Civil Service.

Question 19

Applicable Bail Period: Cases Referred to the DPP

Answer 19

Bail time limits do not apply in cases where an individual is bailed under s. 37(7)(a) or 37C(2)(b) while waiting for a charging decision to be made by the DPP. However, where a charging decision has been requested from the DPP, but the DPP requests further information from the police before reaching that decision, bail time limits will re-apply during the period that the police are gathering that information and, accordingly, the police must set a new bail return date that is not after the end of the person’s applicable bail period. If, at the point that the DPP makes the request for further information, the person’s applicable bail period would end within seven days of the DPP’s request, the person’s applicable bail period is extended to seven days from that request in order to give the police time to gather the information, seek a bail extension or release the suspect from bail. Where the information requested by the DPP is provided, the bail time limit is again suspended (s. 47ZL).

Question 20

Can bail be refused for someone who fails to give their name and address?

Answer 20

The fact that SYMONS refuses to give his name and address does not satisfy the grounds on which bail can be refused under s. 38 of PACE84; this is only so if the name and address cannot be ascertained. Although refusing bail on the grounds that the defendant will interfere with the administration of justice is a reason for refusing bail, this ground would not apply for the purposes of the police making further enquiries or where other suspects are still to be arrested

Question 21

Can items that are found during a search of a person attending a police station to answer live link bail be seized and retained?

Answer 21

• Section 54B of PACE 1984
• a constable may retain a thing seized under s.54B in order to establish its lawful owner where there are RGB it has been obtained in consequence of the commission of an offence
• if what has been seized may be evidence, the constable may retain it for use as evidence at a trial or for forensic examination
• nothing may be retained for either of the above if photographs or copies would be sufficient for that purpose
• designated detention officers, as well as constables, can use the powers to search and seize
• Anything seized by a designated detention officer must be delivered to a constable as soon as practicable and in any case before the person from whom the thing was seized leaves the police station (Police Reform Act 2002, sch. 4, part 3, para. 27A).
• Section 46A(1ZB) (see para. 2.2.3.3) provides a constable with a power of arrest for defendants who attend the police station to answer live link bail but refuse to be searched under s. 54B.

Question 22

When can bail not be granted?

Answer 22

• s.25 Criminal Justice and Public Order Act 1994 - 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 that person’s real name or address;

(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 a case of a person aged 18 or over, where a sample may be taken from the person under s. 63B (where there is a provision for drug testing in force for that police area and station), the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable the sample to be taken;

(e) 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;

(f) 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;

(g) the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his/her own protection; or

(h) the person is charged with murder.

If the person arrested is an arrested juvenile and one or more of the following grounds apply:

• any of the requirements of paras (a) to (h) above but, in the case of para. (d), only if the arrested juvenile has attained the minimum age;
• the custody officer has reasonable grounds for believing that the arrested juvenile ought to be detained in his/her own interests.

Although there are grounds for refusing bail that relate to non-imprisonable offences only, the one relating to ‘commission of further offences’ relates to imprisonable offences only (i.e. burglary).

The previous offending is not specific to the offence currently charged and would therefore relate to any offence, it is information which should be taken as a factor by the custody officer.

The defendant need 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 . . .

The custody officer will have regard to considerations as appear to be relevant in making his/her decision and they include the defendant’s record as respects the fulfilment of his/her obligations under previous grants of bail in criminal proceedings

Question 23

What bail conditions can be imposed?

Answer 23

Under s. 3A of the Bail Act 1976, conditions can be imposed where it is necessary to do so for the purpose of preventing a person from:
* failing to surrender to custody; or
* committing an offence while on bail; or
* interfering with witnesses or otherwise obstructing the course of justice, whether in relation to him/herself or any other person. One or more of the following conditions can 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 their 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 offence and/or any other probable prosecution witness;
* the accused is to surrender his/her passport and/or identity card;
* 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.
It is incorrect to state that there is no action the custody officer can take. Where he/she feels that it is necessary to ensure surrender to custody, he/she may impose a condition of bail that any change of address must be notified.
The grounds for refusing bail are that the person’s name and address cannot be ascertained or that which is given is doubted.

Question 24

What are relevant bail conditions?

Answer 24

‘Relevant condition’ means a condition that relates to the safeguarding of the alleged victim

Question 25

Applicable Bail Period: First Extension of Limit by Court

Answer 25

Dependent on the nature of the application, the court may authorise an extension of bail of 12, 18 or 24 months beginning with the person’s bail start date

Question 26

Can a magistrates court vary bail conditions?

Answer 26

Section 30CB(1) of the Police and Criminal Evidence Act 1984 states:

“Where a person released on bail under s. 30A(1) is on bail subject to conditions, a magistrates’ court may, on an application by or on behalf of the person, vary the conditions if:

(a) the conditions have been varied under s. 30CA(1) since being imposed under s. 30A(3B),

(b) a request for variation under s. 30CA(1) of the conditions has been made and refused, or

(c) a request for variation under s. 30CA(1) of the conditions has been made and the period of 48 hours beginning with the day when the request was made has expired without the request having been withdrawn or the conditions having been varied in response to the request.”

Question 27

What are the purpose of bail conditions?

Answer 27

(a) the need to secure that the person surrenders to custody,

(b) the need to prevent offending by the person,

(c) the need to safeguard victims of crime and witnesses (answer A is therefore incorrect as it is not just victims of crime), taking into account any vulnerabilities of any alleged victim of, or alleged witness to, the offence for which the person was arrested where these vulnerabilities have been identified by the constable,

(d) the need to safeguard the person, taking into account any vulnerabilities of the person where these vulnerabilities have been identified by the custody officer, and

(e) the need to manage risks to the public.