Bail applications - Appeals against bail decisions

Learning Outcomes

After studying this article, you will be able to explain the legal framework for bail applications and appeals in England and Wales, including the presumption in favour of bail, grounds for refusal, the use of bail conditions, and the procedures for appealing bail decisions. You will also be able to identify the roles of the defence and prosecution in bail hearings and apply these principles to SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the procedures and principles relating to bail applications and appeals against bail decisions. Focus your revision on:

• the presumption in favour of bail and its statutory exceptions
• the grounds for refusing bail and the statutory factors considered by the court
• the use and purpose of conditional bail
• the procedure for applying for bail and making further applications
• the process and requirements for appealing bail decisions by both the defence and prosecution
• the consequences of absconding or breaching bail conditions

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the statutory presumption regarding bail for defendants before conviction?
2. Name three grounds on which a court may refuse to grant bail.
3. Who may appeal against a magistrates’ court decision to grant or refuse bail, and what is the process?
4. What are the possible consequences if a defendant breaches their bail conditions?

Introduction

Bail applications and appeals are a fundamental part of criminal procedure, balancing the right to liberty with the need to ensure justice and public safety. The Bail Act 1976 sets out the statutory framework, including the presumption in favour of bail, the grounds for refusal, and the procedures for both conditional bail and appeals. Understanding these rules and how to apply them is essential for SQE1.

The Presumption in Favour of Bail

The starting point for all bail decisions is the presumption that a defendant should be granted bail before conviction.

Key Term: bail Bail is the release of a defendant from custody, with or without conditions, pending trial or further court hearings.

Under section 4 of the Bail Act 1976, all defendants before conviction are entitled to bail unless an exception applies. This reflects the principle that a person is presumed innocent until proven guilty.

Exceptions to the Right to Bail

The presumption in favour of bail is not absolute. Schedule 1 of the Bail Act 1976 lists the exceptions where bail may be refused. The most common grounds are:

• substantial grounds to believe the defendant would fail to surrender to custody
• substantial grounds to believe the defendant would commit further offences on bail
• substantial grounds to believe the defendant would interfere with witnesses or obstruct justice

The court must be satisfied that these grounds exist, not merely that they are possible.

Key Term: substantial grounds Substantial grounds means there must be a real and significant risk, not just a possibility, based on the evidence before the court.

Other exceptions include the defendant’s own protection, insufficient information to make a decision, or where the defendant is already serving a custodial sentence.

Factors Considered by the Court

When deciding whether an exception applies, the court must consider statutory factors, including:

• the nature and seriousness of the offence
• the strength of the evidence
• the defendant’s character, antecedents, associations, and community ties
• the defendant’s record of compliance with previous bail
• the risk of harm to others

Key Term: antecedents Antecedents refers to a defendant’s previous convictions and criminal history.

Conditional Bail

If the court is concerned about risks but does not consider them sufficient to refuse bail outright, it may grant bail subject to conditions.

Key Term: conditional bail Conditional bail is bail granted with specific requirements imposed to address identified risks, such as absconding or interfering with witnesses.

Common bail conditions include:

• residence at a specified address
• reporting to a police station
• curfew or electronic monitoring
• non-contact with certain individuals
• exclusion from specific areas
• surrender of passport

The court must ensure that conditions are necessary, proportionate, and directly related to the risks identified.

Worked Example 1.1

Scenario:
A defendant is charged with burglary and has a history of failing to attend court. The prosecution objects to bail on the basis of absconding risk. The defence offers a surety and daily reporting to the police station.

Answer:
The court will consider the defendant’s record of absconding as a substantial ground to refuse bail. However, if the court is satisfied that the proposed conditions (surety and daily reporting) sufficiently mitigate the risk, it may grant conditional bail rather than remanding the defendant in custody.

Applying for Bail: Procedure

At the first hearing, the prosecution will outline any objections to bail and present relevant evidence. The defence will respond, addressing each ground and proposing conditions if appropriate. The court will then decide whether to grant bail, and if so, whether to impose conditions.

If bail is refused, the defendant is entitled to make one further full application at the next hearing. Any subsequent applications require a change in circumstances or new information.

Key Term: certificate of full argument A certificate of full argument is a document issued by the court confirming that a fully argued bail application has been heard, required for an appeal to the Crown Court.

Appeals Against Bail Decisions

Defence Appeals

If the magistrates’ court refuses bail, the defendant may appeal to a Crown Court judge in chambers. The defendant must serve a notice of application (including the certificate of full argument) on the Crown Court, magistrates’ court, and prosecution, usually within 24 hours. The Crown Court will rehear the bail application and may grant or refuse bail.

Prosecution Appeals

If the magistrates’ court grants bail for an imprisonable offence, the prosecution may appeal to the Crown Court under the Bail (Amendment) Act 1993. The prosecution must give oral notice at the end of the hearing and written notice within two hours. The defendant is remanded in custody until the appeal is heard, usually within two business days.

Worked Example 1.2

Scenario:
A defendant is refused bail by the magistrates’ court. The defence makes a second application at the next hearing, but bail is again refused. What options remain?

Answer:
The defendant may now appeal to the Crown Court, provided a certificate of full argument has been issued. The Crown Court will rehear the application and may grant bail or uphold the refusal.

Absconding and Breach of Bail Conditions

A defendant who fails to surrender to custody commits a separate offence under section 6 of the Bail Act 1976. The court may issue a warrant for arrest and may impose a penalty or remand the defendant in custody. Breach of bail conditions is not a criminal offence but may result in arrest and reconsideration of bail.

Key Term: abscond Abscond means to fail to surrender to custody at the appointed time and place without reasonable cause.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The Bail Act 1976 creates a presumption in favour of bail before conviction, subject to statutory exceptions.
• Bail may be refused only if the court is satisfied that substantial grounds exist for absconding, reoffending, or interfering with justice.
• The court must consider statutory factors, including seriousness of the offence, evidence strength, and the defendant’s history.
• Conditional bail allows the court to address risks without remanding the defendant in custody.
• Appeals against bail decisions are available to both defence and prosecution, with specific procedures and time limits.
• Failure to surrender to bail is a criminal offence; breach of bail conditions may result in arrest and review of bail status.

Key Terms and Concepts

• bail
• substantial grounds
• antecedents
• conditional bail
• certificate of full argument
• abscond