Bail applications - Appeals against bail decisions

Learning Outcomes

This article explains the statutory framework governing bail applications and appeals in England and Wales, with particular focus on the rules examinable in SQE1. It outlines the presumption in favour of bail, the key statutory exceptions, and the operation of the “no real prospect of custody” restriction in limiting custodial remands. It examines the main grounds for refusing bail, the structured assessment of risk using statutory factors, and how conditional bail can be used to manage absconding, reoffending, and interference with witnesses. It details common bail conditions, the role and assessment of sureties and security, and how to construct a realistic, exam-standard bail package. It explores the procedural steps for making first and further bail applications in the magistrates’ and Crown Court, including the certificate of full argument. It reviews the distinct appeal routes and time limits available to both defence and prosecution, including prosecution appeals under the Bail (Amendment) Act 1993 and murder-case restrictions, supporting methodical analysis of bail scenarios and accurate application of the statutory tests in exam-style questions.

SQE1 Syllabus

For SQE1, you are required to understand the procedures and principles relating to bail applications and appeals against bail decisions, with a focus on the following syllabus points:

• 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. The presumption also applies post-conviction in limited situations, such as when the court adjourns for pre-sentence reports.

A practical limitation sits alongside the presumption in many pre-conviction cases: the court should not remand a person in custody unless both an exception to bail is made out and there is a real prospect of a custodial sentence if convicted. This “no real prospect of custody” restriction prevents unnecessary custodial remands in low-seriousness cases.

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. Further statutory exceptions commonly engaged in practice are:

• where it appears the offence was committed while already on bail
• where there are substantial grounds to believe the defendant would engage in conduct on bail causing (or causing fear of) physical or mental injury to an associated person
• where the defendant has been arrested for breaching bail conditions or failing to surrender in the same proceedings

Key Term: associated person
Associated person includes spouses or former partners, cohabitants, parents, those with parental responsibility, and close family ties relevant to domestic contexts.

In addition, special exclusions restrict bail in serious cases:

• defendants charged with murder may only be granted bail by a Crown Court judge and only if the court is satisfied there is no significant risk of an offence on bail likely to cause physical or mental injury to another; applications must be decided promptly, typically within 48 hours of the magistrates’ hearing (excluding weekends and public holidays)
• defendants charged with or previously convicted of certain serious offences (including homicide and rape) may only be granted bail if exceptional circumstances justify it

The operation of several exceptions is subject to the “no real prospect of custody” limitation in pre-conviction proceedings for adult defendants: if the court considers there is no real prospect of a custodial sentence on conviction, some exceptions cannot justify remand in custody. This requires the bench to consider the probable method of dealing with the offence, with reference to sentencing guidelines.

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.

The statutory factors are applied to the specific grounds. For example:

• seriousness and strong evidence often increase the risk of absconding to avoid custody
• a history of similar offending, particularly committed on bail, supports the risk of reoffending
• poor previous compliance with court attendances supports the risk of failing to surrender
• patterns of intimidation or controlling behaviour support the risk of interfering with witnesses, especially in domestic abuse or gang-related cases

The court also considers any other relevant factor, such as drug misuse, unstable housing, or vulnerable health circumstances, insofar as they bear on risk and suitability of conditions.

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 (including bail hostels where appropriate)
• reporting to a police station
• curfew and, where justified, electronic monitoring (tagging)
• non-contact with certain individuals (non-association)
• exclusion from specific areas
• surrender of passport
• provision of financial backing via surety or security

Conditions must be necessary, proportionate and enforceable. The court should identify the specific risk being addressed by each condition and test whether the condition is likely to be effective in practice. Conditions should not be so onerous as to be unworkable, and personal circumstances (work, caring duties, health, and distance to reporting station) should be considered.

Key Term: surety
A surety is a person who promises to forfeit a specified sum if the defendant fails to surrender. The court assesses the surety’s suitability, including financial means, character, and relationship to the defendant.

Key Term: security
Security is money or property deposited with the court by or on behalf of the defendant, forfeited if the defendant fails to surrender.

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 information. The rules of evidence are relaxed at bail hearings because the case is at an early stage; most material is received by way of summary rather than live witnesses. The defence responds, addressing each ground and proposing conditions if appropriate. The court must record reasons in open court for refusing bail or imposing 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 (for example, a new verified bail address, a suitable surety, or material undermining the strength of the case). The court must consider bail at each hearing when a defendant remains in custody.

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.

A practical approach is for the defence to liaise with the CPS before the hearing to understand objections and tailor a bail package that directly addresses them. Where the CPS opposes bail, they should identify the specific exceptions relied on and the supporting factors; the defence should respond systematically, offering targeted conditions.

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 at least 24 hours before the hearing. Appeals are heard as soon as practicable, typically within a few days and often within 48 hours of refusal.

The Crown Court will rehear the bail application de novo. Both sides may make fresh representations and propose different conditions. The judge may grant bail (with or without conditions) or uphold refusal. If bail is granted, the order must be sent promptly to the prison or remand centre to secure release.

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 of appeal at the end of the hearing, before release
• serve written notice on the defendant not more than two hours after notifying the court

The defendant is remanded in custody until the appeal is heard, which must take place as soon as possible and, in any event, not later than the second business day after service of the appeal notice. This hearing is a rehearing focused on the bail decision.

Where the Crown Court grants bail at first instance, the prosecution may, in certain circumstances, seek to appeal to the High Court on a point of law; this route is not available where the Crown Court granted bail following a defence appeal from the magistrates’ court. Prosecution appeals are reserved for cases of genuine concern and used judiciously.

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.

Worked Example 1.3

Scenario:
The magistrates grant conditional bail for an imprisonable offence. The prosecutor gives oral notice of appeal, then files written notice within two hours. What happens next?

Answer:
The defendant must be remanded in custody pending the appeal, which must be listed as soon as practicable and, in any event, by the second business day after service. The Crown Court judge will rehear the bail question and may confirm, vary, or revoke bail.

Worked Example 1.4

Scenario:
A defendant is charged with murder. The magistrates refuse bail and send the case forthwith to the Crown Court. What test applies at the Crown Court bail hearing?

Answer:
Bail may only be granted if the judge is satisfied there is no significant risk that, if released, the defendant would commit an offence likely to cause physical or mental injury to another. Only a Crown Court judge can grant bail in murder cases and must determine the application promptly.

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.

Two forms of the offence exist:

• failing to surrender without reasonable cause
• having a reasonable cause initially, but then failing to surrender as soon as reasonably practicable thereafter

Courts may sentence immediately or adjourn sentence until the end of the substantive case. Sentencing powers differ by venue: up to three months’ imprisonment and a fine in the magistrates’ court, and up to 12 months’ imprisonment and an unlimited fine in the Crown Court.

Police have express powers to arrest a bailed defendant without warrant if they reasonably believe the person is unlikely to surrender, has broken bail conditions, or is likely to do so. A defendant arrested for breach must be brought before the magistrates as soon as reasonably practicable and, in any event, within 24 hours. The court first determines whether a breach occurred; if so, it then decides whether to remand in custody or adjust conditions. A defendant on bail should not be remanded into custody where the court is satisfied there is no real prospect of a custodial sentence on the substantive case.

In both absconding and breach scenarios, financial consequences may follow: security is forfeited, and sureties may be called upon.

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.
• The “no real prospect of custody” restriction limits custodial remands in low-seriousness adult cases.
• Murder charges engage a special bail regime: only a Crown Court judge may grant bail, applying the “no significant risk of injury” test.
• Prosecution appeals against bail granted in imprisonable cases require strict oral and written notices and are heard within two business days.
• Defence appeals to the Crown Court require a certificate of full argument and proceed by way of a de novo hearing.

Key Terms and Concepts

• bail
• substantial grounds
• antecedents
• conditional bail
• certificate of full argument
• abscond
• associated person
• surety
• security