Bail applications - Conditional bail

Learning Outcomes

This article explains the concept of conditional bail within the criminal justice system of England and Wales. After reading this article, you should understand the legal basis for imposing conditions on bail, the key grounds justifying such conditions, the types of conditions commonly imposed by courts, and the potential consequences for a defendant who breaches these conditions. This knowledge will help you answer SQE1 questions relating to bail applications. It further develops the ability to distinguish between refusal of bail and grant of bail with conditions, to apply the necessity and proportionality tests to proposed conditions, and to evaluate how conditions mitigate specific risks identified in Schedule 1 to the Bail Act 1976. You should also be able to identify when conditions are unenforceable or disproportionate, how conditions may be varied, and the procedural steps following a suspected breach, including the 24-hour production requirement and the two-stage court approach to determining breach and reconsidering bail.

SQE1 Syllabus

For SQE1, you are required to understand conditional bail within the broader context of criminal practice and be able to apply the principles of the Bail Act 1976 regarding the imposition of conditions, with a focus on the following syllabus points:

• the grounds upon which conditions can be imposed (ie, necessity linked to preventing absconding, further offences, or interference with justice);
• common types of bail conditions (eg, residence, curfew, reporting, non-contact);
• the requirement for conditions to be necessary and proportionate;
• the consequences of breaching bail conditions;
• the statutory factors the court must consider (eg, nature/seriousness of offence, character and antecedents, community ties, bail record, strength of evidence);
• the “no real prospect of custody” limitation on remand decisions and its interaction with conditional bail;
• variation of bail conditions under CrimPR Part 14 and suitability assessments for sureties and security.

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. Under the Bail Act 1976, on what grounds must the court be satisfied before imposing conditions on bail?
   1. That the defendant is likely to be found guilty.
   2. That the conditions are requested by the prosecution.
   3. That imposing conditions is necessary to prevent certain risks.
   4. That the defendant agrees to the conditions.
2. Which of the following is NOT a common type of bail condition?
   1. Requirement to reside at a specific address.
   2. Requirement to attend weekly counselling sessions.
   3. Requirement to report to a police station.
   4. Requirement not to contact prosecution witnesses.

3. True or false? Breaching a bail condition is a separate criminal offence punishable by imprisonment.

Introduction

When a court considers a bail application, the starting point is the general right to bail under the Bail Act 1976 (BA 1976). However, this right is not absolute. Where the court identifies substantial grounds for believing certain risks exist (such as the defendant failing to surrender, committing further offences, or interfering with witnesses), it may refuse bail altogether. Alternatively, the court may decide that these risks can be managed by granting bail subject to certain conditions. This is known as conditional bail. This article focuses on the principles governing the imposition of conditions on bail.

The presumption in favour of bail applies before conviction and, in some post-conviction situations (for example, when the case is adjourned for reports before sentence). The exceptions to this presumption are structured by offence type and risk (Schedule 1 to the BA 1976). Understanding conditional bail requires careful separation of three questions:

• Is the presumption in favour of bail displaced by an exception?
• If yes, should bail be refused, or can risk be sufficiently mitigated by conditions?
• If bail is granted conditionally, are the proposed conditions necessary, proportionate, and enforceable in relation to identified risks?

The Power to Grant Conditional Bail

The power to impose conditions on bail is found in section 3(6) of the BA 1976. This states that a person may be required to comply with conditions if it appears to the court necessary to do so for the purpose of preventing the occurrence of any of the main risks associated with granting bail. Schedule 1, Part 1, paragraph 8 sets the purposes for which conditions may be imposed.

Key Term: Conditional Bail
Bail granted subject to specific requirements or restrictions imposed on the defendant to ensure their attendance at court, prevent further offending, or protect the integrity of the justice process.

The court cannot impose conditions arbitrarily. There must be a perceived risk related to one of the exceptions to the right to bail, and the condition imposed must be aimed at mitigating that specific risk. The court should give reasons for imposing conditions, and those reasons must be recorded. The rules of evidence at bail hearings are relaxed compared to trial; hearsay and summaries may be considered, and the court adopts an inquisitorial approach to gather sufficient information for its decision.

It is worth noting that the “no real prospect of custody” limitation in Schedule 1, Part 1, para 1A restricts the court’s power to remand an adult defendant in custody pre-conviction if there is no real prospect of a custodial sentence upon conviction. That limitation does not prevent the grant of bail with conditions where those conditions meet the necessity and proportionality tests.

Grounds for Imposing Conditions

The court must be satisfied that imposing conditions is necessary to prevent the defendant from:

• Failing to surrender to custody (absconding).
• Committing an offence while on bail.
• Interfering with witnesses or otherwise obstructing the course of justice.

Additional grounds under Schedule 1, Part 1, paragraph 8(1) of the BA 1976 include imposing conditions where necessary:

• for the defendant’s own protection (or welfare, if a child or young person); or
• to ensure the defendant makes themself available for inquiries or reports to assist the court in sentencing.

The court must have substantial grounds for believing one of these risks exists before imposing conditions. The conditions must also be proportionate to the perceived risk and enforceable. In practice:

• Necessity means the condition addresses a specific risk and less restrictive measures would not suffice.
• Proportionality requires balancing the risk against the intrusion on the defendant’s liberty, family life, employment, and other legitimate interests.
• Enforceability demands that the condition is sufficiently clear, practical, and capable of being monitored (for example, a curfew can be monitored by police visits or electronic tagging; an exclusion zone must be precisely delineated so police can verify compliance).

The court must also take into account statutory factors (BA 1976, Sch 1, Pt 1, para 9) when deciding whether risks are sufficiently mitigated by conditions, including:

• nature and seriousness of the offence and probable disposal;
• character, antecedents, associations, community ties (eg, employment, housing, family support);
• record in relation to previous bail grants (eg, prior failures to surrender or breaches);
• strength of the evidence (pre-conviction only);
• any risk of physical or mental injury to others, particularly associated persons in domestic cases.

Where concerns relate to domestic violence or harassment, conditions may be targeted to prevent contact or proximity to associated persons (Sch 1, Part 1, para 2ZA). In youth cases, conditions reflecting welfare needs may be used, often with support from the Youth Offending Team, bearing in mind schooling, safeguarding, and familial oversight.

Common Types of Bail Conditions

Courts have a wide discretion in setting conditions, but certain types are frequently used:

Residence Requirement

The defendant may be required to live and sleep at a specified address. This could be their home address, a relative’s address, or approved premises like a bail hostel (approved premises). This condition helps ensure the police know the defendant’s whereabouts and facilitates monitoring (eg, for curfews). It primarily addresses the risk of failing to surrender and can also assist with reducing risk of further offending or interference.

Key Term: Bail Hostel
Approved premises where some defendants may be required to reside as a condition of bail. These premises have their own rules (eg, curfews, alcohol prohibitions) and provide supervision. Courts may impose residence at a bail hostel; custody officers cannot require a suspect to reside in a bail hostel as a police bail condition.

When a residence condition is proposed, the court will examine the suitability of the address (stability, occupants, proximity to victims/witnesses, association with co-defendants or gangs). The court may hear evidence from the proposed host or require confirmation in court.

Reporting Condition

The defendant may be required to report to a specific police station at regular intervals (eg, daily, three times a week). This helps monitor the defendant’s presence in the jurisdiction and reduces the risk of absconding. Report times must be workable given the defendant’s employment or caring responsibilities. Non-compliance is a breach of bail and may result in arrest and reconsideration of bail.

Curfew

A curfew requires the defendant to remain indoors at a specified address between certain hours (eg, 7 pm to 7 am). This condition aims to prevent the defendant from committing further offences, particularly those likely to occur at night. Compliance can be checked by police visits or electronic monitoring (tagging).

Key Term: Curfew
A requirement imposed as a bail condition obliging the defendant to remain at a specified address during specified hours.

Curfews must be tailored: hours must be realistic, and the court should consider whether the curfew interferes with work or family responsibilities. In appropriate cases, electronic monitoring may be used to ensure compliance.

Exclusion Zone

The defendant may be prohibited from entering a specific geographical area. This could be the area where the alleged offence occurred, where the victim or witnesses live, or an area associated with previous offending (eg, a particular town centre, specific licensed premises).

Key Term: Exclusion Zone
A clearly defined area or location the defendant is prohibited from entering while on bail, used to protect victims/witnesses or reduce offending risk.

Clarity is important: the zone should be mapped or described precisely (eg, defined streets or a radius around an address) so that police can enforce and the defendant can understand the restriction.

Non-Contact Condition

This prohibits the defendant from contacting, directly or indirectly, specified individuals, typically the alleged victim(s) or prosecution witnesses. This is essential for preventing interference with witnesses or the course of justice. Indirect contact includes social media, messaging apps, and asking third parties to communicate. Orders should list names and clarify that contact through representatives (eg, legal advisers where necessary for case preparation) must be tightly controlled.

Passport Surrender

If there is a significant risk of the defendant fleeing the country, the court may require the surrender of their passport and impose a condition not to apply for new travel documents. This directly addresses the risk of failing to surrender.

Surety and Security

These are financial conditions aimed at ensuring court attendance.

Key Term: Surety
A third party who promises to pay the court a specified sum of money (a recognisance) if the defendant fails to surrender to custody. The surety does not pay money upfront but faces forfeiture if the defendant absconds.

Key Term: Security
A sum of money or other valuable item deposited with the court by the defendant or a third party, which will be forfeited if the defendant fails to surrender to custody.

Courts must be satisfied that a proposed surety is suitable (eg, has sufficient funds, good character, lack of relevant previous convictions, and genuine influence over the defendant). The surety will typically give evidence on oath. The amount must be proportionate to the risk and the surety’s means. Security requires actual payment into court (cash or cleared funds) prior to release. In appropriate cases, the court may order partial forfeiture of a recognisance.

Electronic Monitoring (Tagging)

This is not a condition in itself but a means of monitoring compliance with other conditions, such as a curfew or an exclusion zone. It can deter offending and provide objective evidence of compliance or breach.

Key Term: Electronic Monitoring
Electronic tagging used to monitor compliance with bail conditions, typically curfew or exclusion zones, providing near-real-time alerts of potential breaches.

The court should consider the availability of providers, the defendant’s ability to wear a tag (eg, medical issues), and privacy implications. Tagging is commonly used alongside curfew conditions and may be particularly apt in domestic violence or gang-related cases where proximity is a concern.

Additional Illustrative Conditions

• Non-association with co-defendants or specified associates (eg, named gang members).
• Restrictions on entering licensed premises or attending football matches where offending context involves alcohol or public order.
• Requirement to attend appointments with a solicitor or probation/YOT for pre-sentence report interviews.
• Prohibitions on driving (eg, in case of alleged dangerous driving) pending assessment of risk.

Conditions must be individually tailored. Overbroad or vague conditions (eg, “do not enter London”) risk being found disproportionate or unenforceable.

Worked Example 1.1

David is charged with assault occasioning actual bodily harm following a fight outside a pub. The victim lives near David. The prosecution objects to bail, fearing David might interfere with the victim or commit further offences if released, noting David has previous convictions for public order offences. David’s solicitor argues that David has strong community ties, a stable job, and offers conditions.

What conditions might the court impose if it decides to grant conditional bail?

Answer:
The court might impose conditions aimed at the identified risks. To prevent interference with the victim, a non-contact condition prohibiting any communication with the victim would be appropriate. An exclusion zone condition preventing David from entering the area where the victim lives could also be imposed. To address the risk of further offences, especially given the pub context, a curfew (perhaps electronically monitored) or a condition not to enter licensed premises might be considered. A residence condition at his home address could also be imposed to ensure stability and monitorability.

Worked Example 1.2

Sarah was granted conditional bail with a requirement to report to her local police station every Monday, Wednesday, and Friday between 9 am and 5 pm. She failed to report on Monday because she forgot. The police arrested her for breach of bail. At court, the prosecution argues she should be remanded in custody as she cannot be trusted to comply. Sarah expresses remorse and explains it was a genuine oversight.

What options does the magistrates’ court have?

Answer:
The court must first determine if Sarah breached the condition without reasonable excuse. Forgetting is unlikely to be considered a reasonable excuse. If the breach is established, the court has discretion. Given it's a first breach and seemingly not deliberate avoidance, the court might decide against remanding her in custody. It could release her on bail again with the same conditions, possibly adding a warning about future compliance. Alternatively, it could impose varied or more stringent conditions, perhaps requiring daily reporting for a period to ensure compliance. Remanding her in custody is also an option if the court feels the breach indicates a significant risk (eg, of absconding) that cannot be managed by conditions.

Worked Example 1.3

Omar is charged with burglary. His cousin offers to act as a surety in the sum of £10,000. The cousin has part-time employment and limited savings. The prosecution argues the proposed surety is unsuitable.

How will the court assess the suitability of a surety and what alternatives exist?

Answer:
The court will consider the proposed surety’s financial resources, character, any relevant previous convictions, and relationship with Omar. The surety must give evidence on oath. If £10,000 is not proportionate to the risk or beyond the cousin’s means, the court may either set a lower recognisance reflecting the cousin’s resources or decline the surety and instead require security (actual money paid into court). It may also look for another suitable surety or adjust the bail package with additional conditions (eg, curfew, exclusion zone) to manage risk without financial terms.

Breach of Bail Conditions

It is important to understand that breaching a bail condition is not a separate criminal offence in itself (unlike failing to surrender to bail, which is an offence under s 6 BA 1976).

However, if a police officer has reasonable grounds for believing that a defendant has breached, or is likely to breach, any bail condition, they have the power to arrest the defendant without a warrant (s 7(3) BA 1976).

Following arrest, the defendant must be brought before a magistrates’ court as soon as practicable and within 24 hours of arrest. If not brought within 24 hours, they must be released. The magistrates will adopt a two-stage approach:

• Determine breach: Whether there has in fact been a breach and whether any excuse is reasonable (evidence may be heard from the arresting officer and the defendant).

• Determine bail: If breach is established, decide whether to remand in custody, grant bail on the same conditions, or grant bail with varied/additional conditions. Any variations must still satisfy the necessity and proportionality tests and be aimed at the specific risk.

• If the court finds the defendant did breach a condition without reasonable excuse, it may:

  • Remand the defendant in custody.
  • Grant bail again on the same conditions.
  • Grant bail with varied or additional conditions (which may be more stringent).

The “no real prospect of custody” restriction applies to remand decisions: if there is no real prospect of a custodial sentence, an adult defendant who has not yet been convicted in the proceedings should not be remanded in custody pre-conviction. Nevertheless, the court may still vary and enforce conditions when granting bail.

Where breach concerns electronic monitoring, the court will usually examine monitoring logs and the nature of the alleged non-compliance (eg, brief signal loss, equipment fault, or genuine mistake) before deciding on the appropriate course.

Variation of Bail Conditions

Either party may apply to vary bail conditions in the magistrates’ court under the Criminal Procedure Rules (Part 14). A variation may be sought due to changes in circumstances (eg, new address, employment hours conflicting with reporting, medical issues affecting tagging). Police-imposed conditions after charge can be varied by application to the custody officer or the magistrates. The court will reassess necessity and proportionality and record reasons for any change.

Conditional Bail in Serious Cases

In murder cases, bail can only be granted by a Crown Court judge and may not be granted unless the court is satisfied that there is no significant risk of the defendant committing, while on bail, an offence likely to cause physical or mental injury to another person. Even where bail is granted in such cases, conditions will be stringent and closely tailored to risk (for example, residence at approved premises, electronic monitoring, strict non-contact, and exclusion zones). In domestic violence cases, the associated person risk ground is often addressed by robust non-contact and proximity restrictions.

Revision Tip

Remember the distinction: Failing to surrender to custody IS a criminal offence. Breaching a bail condition (other than the condition to surrender) IS NOT a criminal offence, but can lead to arrest and reconsideration of bail, possibly resulting in custody.

Exam Warning

Do not confuse the grounds for refusing bail (Sch 1, Part 1, para 2 BA 1976) with the grounds for imposing conditions (Sch 1, Part 1, para 8 BA 1976). Conditions can only be imposed if necessary to prevent one of the specified risks. Ensure you apply the correct test in exam scenarios.

Worked Example 1.4

Lena faces a harassment charge involving her former partner, an associated person. The prosecution objects to bail because of risk of further harm. Lena’s solicitor proposes a stringent package: residence at her sister’s house outside the area, a curfew 8 pm–6 am with electronic monitoring, a 500-metre exclusion around the partner’s address and workplace, and a non-contact condition.

How should the court assess this package in light of the associated person risk?

Answer:
The associated person risk allows the court to refuse bail if substantial grounds exist to believe Lena would commit an offence on bail causing injury or fear of injury. If the court is persuaded the identified risks can be sufficiently managed by the proposed conditions, it may grant conditional bail. The package is targeted: a defined exclusion zone, non-contact, curfew with tagging, and residence away from the complainant. The court will consider enforceability (clarity of the exclusion area, tagging availability), proportionality (impact on Lena’s life), and necessity (risk of harm). If satisfied, the court can grant bail with those conditions; if not, remand may be maintained.

Worked Example 1.5

Kai is on conditional bail with a curfew 9 pm–6 am. He arrives home at 9:20 pm due to a public transport breakdown verified by travel alerts. His tag registers a breach. Police arrest him for breach and bring him to court.

What outcome is likely?

Answer:
The court first decides whether a breach occurred and, if so, whether there is a reasonable excuse. Documentary evidence of the transport breakdown supports a reasonable excuse. If accepted, the court may find no breach or treat it as excused and maintain existing bail. If the excuse is not accepted, the court will reassess risk. A single, explained late return is unlikely to justify remand; the court may continue bail with a warning or make minor adjustments (eg, allow a small grace period for exceptional delays).

Key Point Checklist

This article has covered the following key knowledge points:

• Conditional bail is granted under the Bail Act 1976 when necessary to mitigate risks associated with releasing a defendant.
• Conditions can only be imposed if the court believes they are necessary to prevent the defendant failing to surrender, committing further offences, interfering with witnesses/justice, or for their own protection/welfare, or to facilitate inquiries/reports.
• Statutory factors inform whether risks exist and whether conditions are required, including the seriousness of the offence, defendant’s antecedents and community ties, bail record, strength of evidence, and risk of harm to others.
• Common conditions include residence, reporting, curfew, exclusion zones, non-contact, passport surrender, sureties, security, and electronic monitoring to enforce curfew/exclusion.
• Conditions must be proportionate to the risk identified and enforceable; they should be clear, practical, and tailored to the case.
• Breaching a bail condition (other than failure to surrender) is not a criminal offence but can lead to arrest, production within 24 hours, and reconsideration of bail, potentially resulting in remand or stricter conditions.
• Bail conditions can be varied under CrimPR Part 14 where circumstances change; police-imposed conditions after charge can be varied by a custody officer or the court.
• In murder cases, bail may only be granted by a Crown Court judge where there is no significant risk of offences likely to cause injury; conditional bail in such cases will be stringent and closely targeted.

Key Terms and Concepts

• Conditional Bail
• Curfew
• Exclusion Zone
• Bail Hostel
• Surety
• Security
• Electronic Monitoring