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BAIL
THE GENERAL RIGHT TO BAIL
Section 4 of the Bail Act 1976 provides that bail shall be granted to:
(a) A person accused of an offence who appears before a
magistrates' court or the Crown Court in connection with
proceedings for the offence.
(b) A person accused of an offence who applies to a court for
bail in connection with the proceedings.
(c) A person who, having been convicted of an offence, appears
before a magistrates' court to be dealt with for breach of a
probation or community service order.
(d) A person who has been convicted of an offence and whose
case has been adjourned for reports to be obtained before
sentence.
Section 4 applies when a person appears before a magistrates' court
or the Crown Court.
EXCEPTIONS
1. Schedule 1 to the Bail Act 1976 provides that, where the
accused is charged with an offence punishable with imprisonment, he
need not be granted bail in the following circumstances:
(a) If the court is satisfied that there are substantial grounds for
believing that the defendant, if released on bail, would:
(i) fail to surrender to custody, or
(ii) commit an offence while on bail, or
(iii) interfere with witnesses or otherwise obstruct the
course of justice.
(b) If the court is satisfied that the defendant should be kept in
custody for his own protection or, if he is a child or a young
person, for his own welfare.
(c) If the defendant is already in custody in pursuance of a court
sentence.
(d) If it has not been practicable for want of time to obtain
sufficient information to enable the court to make its decision
on bail.
(e) If the defendant, having been released on bail, has been
arrested for absconding or breaking the conditions of his bail.
(f) If the offence is one triable on indictment or either way and the
defendant was on bail in criminal proceedings on the date of
the offence (as inserted by the CJPOA 1994).
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Relevant considerations
In making its decision under (a) above, the court must have regard to
such of the following considerations as appear to it to be relevant:
N the nature and seriousness of the offence;
N the character, antecedents, associations and community ties
of the defendant;
N the defendant's record as respects the fulfilment of his
obligations under previous grants of bail; and,
N except in a case which is adjourned for inquiries or a report,
the strength of the evidence of the defendant having
committed the offence.
The court must also take into account any other considerations which
appear to be relevant.
2. Where the accused is charged with an offence which is not
punishable with imprisonment, Schedule 1 provides that bail may be
withheld only in circumstances mentioned in (b), (c) and (e) above, or
where the court believes, in view of a previous failure to surrender to
custody, that the defendant would abscond if released on bail
(Schedule 1, Part II).
3. If the defendant is charged with murder, manslaughter, rape,
attempted murder or attempted rape, and is granted bail after
representations have been made by the prosecution about any of the
grounds specified in (a) above, the court must give reasons for its
decision to grant bail (Schedule 1, Part I, para 9A, Bail Act 1976, as
inserted by s153 Criminal Justice Act 1988)
4. A defendant charged with or convicted of murder,
manslaughter, rape, attempted murder or attempted rape after
previous conviction of such offences shall be granted bail only if the
court or, as the case may be, the constable considering the grant of
bail is satisfied that there are exceptional circumstances which justify
it (s25, Criminal Justice and Public Order Act 1994, as amended by
s56 Crime and Disorder Act 1998).
CONDITIONS
Section 3 of the Bail Act 1976 provides that bail may be granted on
conditions. The possible conditions under s3 are provision of sureties;
reporting; residence and restrictions. Breach of a bail condition
renders the defendant liable to arrest without a warrant by a constable
(s7(3) Bail Act 1976).
POLICE BAIL
There is no right to bail at the police station.
When a magistrate issues a warrant for arrest he may endorse it for
bail, ie, give a written direction that the person to be arrested is to be
released on bail subject to a duty to appear before a magistrates'
court on the date specified and with the amount in which any surety is
to be bound (s117 Magistrates' Courts Act 1980).
The police also have powers, under ss37 and 38 of the Police and
Criminal Evidence Act 1984, to grant bail to persons arrested either
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without a warrant or under a warrant not endorsed for bail. These
powers are subject to the exceptions in s25 CJPOA 1994 above.
The police can attach conditions if this appears to be necessary for
ensuring that the defendant surrenders to custody, does not commit
an offence while on bail, or does not interfere with witnesses or
otherwise obstruct the course of justice (s3 Bail Act 1976, as
amended by s27 CJPOA 1994).
BAIL IN THE MAGISTRATES' COURT
Under the Magistrates' Courts Act 1980, a defendant may apply for
bail at the magistrates' court when:
(a) he is brought before a magistrates' court and the hearing is
adjourned (s128);
(b) he is committed for trial to the Crown Court (s6(3);
(c) he is committed to the Crown Court for sentence (s38);
(d) he has been convicted summarily and the magistrates
adjourn the proceedings in order to consider sentence (s128).
The magistrates may impose conditions when granting bail if this
appears necessary to ensure that the defendant:
N surrenders to custody;
N does not commit an offence while on bail;
N does not interfere with witnesses or otherwise obstruct the
course of justice; or
N makes himself available for the purpose of enabling inquiries
or a report to be made to assist the court in dealing with him
for the offence with which he is charged (s3(6) Bail Act 1976).
The defendant is permitted to make two fully argued applications for
bail before the magistrates. After those the magistrates need not hear
a further application unless the defendant has a new argument to
advance (Schedule I, PartIIA Bail Act 1976).
APPEALS
Defence appeal to the Crown Court
There is a limited right to make an application to the Crown Court
against a magistrates' court's refusal of bail. A person remanded in
custody by magistrates prior to summary trial or committal
proceedings, or after summary conviction and before sentence, can
apply to the Crown Court for bail. However, the Crown Court can only
grant bail on such an application if the magistrates' court has certified
that it heard full argument on the defendant's bail application before
rejecting it (s81(1) Supreme Court Act 1981, as inserted by the
Criminal Justice Act 1982).
Defence appeal to the High Court
Where a magistrates' court refuses bail or grants it subject to
conditions, the defendant may apply to the Queen's Bench Division of
the High Court and a judge in chambers may grant bail or vary the
conditions (s22(1) Criminal Justice Act 1967, as amended by the Bail
Act 1976, sch. 2, para 37).
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Prosecution appeal to the Crown Court
Where a magistrates' court grants bail to a person who is charged
with or convicted of (a) an offence punishable by a prison sentence of
five years or more, or (b) an offence of taking a conveyance without
authority or aggravated vehicle taking, the prosecution may appeal to
a judge of the Crown Court against the granting of bail. The right of
appeal applies only where the prosecution is conducted by or on
behalf of the DPP, and the prosecution made representations that bail
should not be granted. The right of appeal can only be exercised if
the prosecution gives both oral and written notice of appeal.
Prosecution application for reconsideration
The prosecution can apply to a magistrates' court for reconsideration
of a decision to grant bail made by the court or by the police, where:
(a) the defendant is charged with an indictable offence or an
either-way offence and not with a summary offence only; and
(b) the application is based on new information which was not
available to the court or the police at the time when the
original decision to grant bail was made.
On an application for reconsideration of a bail decision, the court may
impose or vary bail conditions or withhold bail altogether (s5B Bail Act
1976, as inserted by the CJPOA 1994).
FAILURE TO SURRENDER
If a person who has been released on bail fails without reasonable
cause to surrender to custody he is guilty of an offence (s6(1) Bail Act
1976).