A Complete Guide To Criminal Bail

A Complete Guide To Criminal Bail

Innocent until proven guilty is one of the founding principles of the Rule of Law. For this reason, anyone who is being investigated or has been charged with a criminal offence has the right to apply for bail. An in-depth understanding of bail provides people with confidence when dealing with the criminal justice system, especially those who have never been in trouble with the law before. That is why we have prepared this extensive guide. However, this should not be taken as legal advice and it is important to instruct an experienced Criminal Defence Solicitor.

What is Bail?

Bail allows a person charged with a crime to be temporarily released from custody while awaiting proceedings. This mechanism balances the principle of presumed innocence with the need to ensure that the Defendant attends their court dates and does not pose a risk to the public or obstruct justice.

What are the circumstances that will lead to the Court denying bail?

Indictable and either way offences

Section 4 of the Bail Act 1976 provides the presumption for granting unconditional bail unless a statutory exception to bail applies. If a person (known as the Defendant) is charged with an indictable offence (one that must be heard in the Crown Court) or an either-way offence (heard in either the Magistrates' Court or the Crown Court) and it appears to the Court that there is a real prospect the Defendant, if convicted in the proceedings, would be given a prison sentence, the Court may refuse bail if:

1. There is a fear that the Defendant might not appear for their trial or subsequent hearings.

2. The Defendant might engage in further criminal activity if released.

3. The Defendant might tamper with witnesses or obstruct the course of justice.

4. The Defendant committed the offence whilst out on bail.

5. Being remanded in custody is needed for the Defendant's safety.

6. The Defendant is already serving a custodial sentence.

7. Sufficient information to make a decision on whether to grant bail cannot be practically obtained.

8. The Defendant has failed to surrender to police or breached existing bail conditions related to the offence they are currently charged with.

9. One of the following applies:

a) the Defendant has tested positive for heroin, cocaine, or crack cocaine; or

b) the offence is one under section 5(2) or (3) of the Misuse of Drugs Act 1971 and relates to a Class A drug or the Court is satisfied that there are substantial grounds for believing that misuse by them of any specified Class A drug caused or contributed to the offence; or (even if it did not) that the offence was motivated wholly or partly by their intended misuse of such a drug; and the Defendant has refused to agree to a drug assessment or follow up treatment. (In this situation, bail can only be granted if the Court is satisfied that there is no significant risk of them committing an offence while on bail.

10. The case has been adjourned and the Defendant must be kept in custody in order for a report or enquiry to be completed.

If there is no prospect of the Defendant going to prison if convicted, bail can only be refused if:

1. There are significant grounds to believe that the Defendant, if released on bail, would commit an offence that would, or would be likely to, cause:

a. physical or mental injury to a person; or

b. a person to fear physical or mental injury

2. The Court is satisfied that the Defendant should be kept in custody for their own protection.

3. The Defendant is already serving a prison sentence.

4. The Court cannot obtain sufficient information to make a decision on bail.

5. One of the following applies:

a. the Defendant has tested positive for heroin, cocaine or crack cocaine; or

b. the offence is one under section 5(2) or (3) of the Misuse of Drugs Act 1971 and relates to a Class A drug or the Court is satisfied that there are substantial grounds for believing that misuse by them of any specified Class A drug caused or contributed to the offence; or (even if it did not) that the offence was motivated wholly or partly by their intended misuse of such a drug; and the Defendant has refused to agree to a drug assessment or follow up treatment. (In this situation, bail can only be granted if the Court is satisfied that there is no significant risk of them committing an offence while on bail.

6. The case has been adjourned and the Defendant must be kept in custody in order for a report or enquiry to be completed.

Summary offences

When a Defendant is charged with a summary offence (heard in the Magistrates' Court) that carries a potential prison sentence and there is a real possibility that they will go to prison if convicted, the Court may refuse bail if:

1. The Defendant has previously been granted bail for another offence and failed to surrender to custody, and the Court believes they would fail to surrender again if released.

2. The offence was committed on bail..

3. There are substantial grounds to believe the Defendant would commit an offence causing a person physical or mental injury or threaten them with physical or mental injury.

4. Being remanded in custody is necessary for the Defendant's own safety.

5. The Defendant is already in prison.

6. The Defendant, having been released on bail for the present offence, has been arrested for absconding or breaching bail conditions, and there are substantial grounds to believe they would fail to surrender, commit an offence, or interfere with witnesses if released.

7. There is no time, or it is not practical to gather evidence to decide on granting bail.

8. The Defendant has tested positive for heroin, cocaine, or crack cocaine, and the offence relates to a Class A drug or is substantially linked to drug misuse. Additionally, if the Defendant refuses a drug assessment or treatment, they may not be granted bail unless the Court is convinced there is no significant risk of further offences.

If there is no real prospect of a custodial sentence, the Court can only refuse to grant bail if:

1. There are substantial grounds to believe that if released on bail, the Defendant would commit an offence causing physical or mental injury to an associated person or cause them to fear such injury.

2. Being remanded in custody is necessary for the Defendant's own safety.

3. The Defendant is already in prison.

4. There is no time, or it is not practical to gather evidence to decide on granting bail.

5. The defendant has tested positive for heroin, cocaine, or crack cocaine, and the offence relates to a Class A drug or is substantially linked to drug misuse. Additionally, if the defendant refuses a drug assessment or treatment, they may not be granted bail unless the Court is convinced there is no significant risk of further offences.

Bail will not usually be granted if the Defendant is accused of murder. Where a person is charged with an offence of manslaughter, rape or a serious sexual offence, and has previously been convicted in the UK or court of an EU Member State of an offence of murder, attempted murder, rape or a serious sexual offence, bail will only be granted where there are exceptional reasons to justify it.

Bail may also be refused in cases involving domestic violence. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) provides that if a person, should be released on bail, is likely to physically or mentally injure an associated person or cause them to fear injury in a domestic setting, they should be remanded in custody.

An associated person is defined as a person whom the Defendant:

• Is or has been married to.

• Is or has been a civil partner.

• Lives with or used to live with.

• Is a relative.

• Is a fiancé or ex- fiancé.

• Has or did have an intimate personal relationship with which is or was of significant duration.

• In relation to any child, is the parent of that child or have parental responsibility for that child.

• Is a party to the same family proceedings.

What are Bail Conditions?

Bail conditions are requirements imposed on a person granted bail to ensure compliance with the bail terms and attendance at court proceedings. The Court can tailor bail conditions to meet specific risks associated with the Defendant's release. Common bail conditions include:

• The Defendant may be required to reside at a specific address, which is often the address provided at the time of the bail application.

• Abiding by a curfew which restricts the Defendant to a particular place during specified hours, usually at night.

• The requirement to report to a local police station at regular intervals.

• A prohibition on contacting certain people. This condition is particularly relevant in cases involving domestic violence or where there is a risk of intimidation.

• Travel restrictions.

• Payment of a surety (promise of money being paid should the Defendant abscond)

The imposition of these conditions is guided by the principle of proportionality, ensuring that they are necessary and appropriate given the circumstances of the case.

Can Bail Conditions Be Varied?

Bail conditions are not set in stone and can be modified if circumstances change. Both the Defendant and the Prosecution can apply to have bail conditions varied.

To vary bail conditions, a formal application must be made to the Court that initially imposed them.. The application should clearly outline the reasons for the requested changes and provide evidence supporting the need for variation. The Court will then consider the application, taking into account factors such as:

• Major changes in the Defendant's circumstances, such as employment, living arrangements, or health, may justify modifying bail conditions.

• The emergence of new evidence affecting the Defendant's risk assessment can be a valid reason for varying bail conditions.

• If the Defendant demonstrates good behaviour and complies with existing conditions, the court may consider easing the restrictions.

• The Court will also consider the impact of the conditions on the Defendant's ability to lead an everyday life, such as maintaining employment or family relationships.

What Happens if Bail Conditions Are Breached?

Breaching bail conditions is a serious offence and can result in significant consequences including being arrested. The Court may, as a consequence:

1. Revoke bail entirely and remand the Defendant in custody until their trial or next court appearance. This is often the case when the breach indicates a significant risk of reoffending or absconding.

2. Impose more stringent conditions to mitigate future risks. This could include increased reporting requirements, tighter curfews, or additional restrictions on movement.

3. Add further charges, such as failure to surrender to custody, which is a criminal offence under Section 6 of the Bail Act 1976.

4. In the case of a minor breach, the Court may issue a warning, emphasising the importance of adhering to bail conditions and the potential consequences of any future violations.

What is Police Bail?

Police bail is granted by the police rather than the Courts. Police bail allows the police to release a suspect from custody while ensuring they are available for further investigations and/or to attend court. There are two main types of police bail:

Pre-Charge Bail

This type of bail is granted when a suspect is released while the police continue their investigation. Under the Police and Criminal Evidence Act 1984 (PACE), the police can release a suspect on bail before they are charged if they need more time to gather evidence. Pre-charge bail is subject to strict time limits, and conditions can be imposed to manage risks. The Police, Crime, Sentencing and Courts Act 2022 introduced changes to pre-charge bail, including provisions for extending bail periods in complex cases. Furthermore, the police are encouraged to use pre-charge bail whenever necessary and proportionate, rather than alternatives such as ‘released under investigation’.

Post-Charge Bail

This type of bail is granted when a suspect is released after being charged but before their court appearance. Conditions similar to those imposed by the Courts can be applied to ensure the Defendant appears at their court hearing and does not interfere with the course of justice (for example, by harassing witnesses).

The procedures and conditions for police bail are outlined in section 37 of PACE, which allows the police to impose conditions they deem necessary and proportionate. The police must consider factors such as the nature and seriousness of the offence, the suspect's criminal history, and the likelihood of compliance with bail conditions.

If you have any questions regarding this article, please call 0300 3732424. If you have been arrested and require police station representation, please get in touch through our emergency number 0300 373399.