Learning Outcomes
After studying this article, you will be able to explain the legal framework for bail applications, identify the consequences of absconding and breaching bail conditions, and apply the relevant statutory and procedural rules to SQE1-style scenarios. You will also be able to distinguish between absconding and breach of bail, describe the process for dealing with breaches, and advise on the impact of these issues on future bail decisions.
SQE1 Syllabus
For SQE1, you are required to understand the procedures and consequences relating to bail applications, absconding, and breaches of bail. As you revise, focus on:
- the presumption in favour of bail and the main exceptions
- the legal consequences of failing to surrender to bail (absconding)
- the distinction between absconding and breach of bail conditions
- the process for arrest and court response to breaches of bail
- the impact of absconding and breaches on future bail applications and sentencing
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.
- What is the difference between absconding and breaching a bail condition?
- What are the possible legal consequences for a defendant who fails to surrender to bail?
- How does the court respond when a defendant is arrested for breaching a bail condition?
- True or false? Breaching a bail condition is always a criminal offence.
Introduction
Bail is a fundamental part of the criminal justice system, allowing a defendant to remain at liberty before trial or sentencing, subject to conditions. However, bail is not unconditional: defendants must surrender to custody at the required time and comply with any conditions imposed. Failing to do so—either by absconding (not surrendering) or breaching a bail condition—can have serious legal consequences. This article explains the rules, procedures, and practical outcomes relating to absconding and breaches of bail, as required for SQE1.
Bail: The Legal Framework
The starting point for bail is the presumption in favour of bail for unconvicted defendants. This is set out in the Bail Act 1976.
Key Term: bail Bail is the release of a defendant from custody, with or without conditions, pending trial or sentence. The defendant must surrender to custody at the appointed time.
The court may impose conditions on bail to reduce the risk of absconding, committing further offences, or interfering with witnesses.
Key Term: bail condition A bail condition is a requirement imposed by the court (or police) that a defendant must comply with while on bail, such as residence, curfew, reporting to police, or non-contact with certain persons.
Absconding: Failure to Surrender
A defendant who fails to surrender to custody at the time and place required is said to have absconded.
Key Term: abscond Absconding means failing to surrender to custody at the appointed time and place without reasonable cause.
Absconding is a separate criminal offence under section 6 of the Bail Act 1976. The court will usually issue a warrant for the defendant’s arrest. The defendant may be prosecuted for failing to surrender, and the court may be less likely to grant bail in the future.
Worked Example 1.1
A defendant is bailed to attend court at 10:00am but does not appear until 2:00pm, claiming illness. The court finds the excuse unconvincing.
Answer: The defendant has absconded by failing to surrender at the required time. The court may issue a warrant, prosecute for failing to surrender, and consider remanding the defendant in custody.
Breach of Bail Conditions
Breaching a bail condition is not the same as absconding. A breach occurs when a defendant fails to comply with a specific condition of bail, such as missing a curfew or contacting a prohibited person.
Key Term: breach of bail A breach of bail is a failure to comply with a condition of bail, other than the requirement to surrender to custody.
Breaching a bail condition is not, in itself, a criminal offence (unless the breach also amounts to a separate offence, such as witness intimidation). However, the police may arrest the defendant without a warrant if they have reasonable grounds to believe a condition has been breached or is likely to be breached.
Upon arrest for breach, the defendant must be brought before the court as soon as practicable and within 24 hours. The court will determine whether a breach occurred and may:
- continue bail with the same or varied conditions
- impose more stringent conditions
- remand the defendant in custody
Worked Example 1.2
A defendant on bail with a curfew condition is found outside their home after curfew hours. The police arrest the defendant for breach of bail.
Answer: The defendant is brought before the court. The court may vary the conditions, impose stricter conditions, or remand the defendant in custody. The breach itself is not a criminal offence.
Legal Consequences of Absconding
Absconding is a criminal offence. If convicted, the defendant may be sentenced to imprisonment (up to three months in the magistrates’ court or up to 12 months on indictment) and/or a fine. The court may also forfeit any surety or security provided for bail.
Absconding also has practical consequences:
- the court is less likely to grant bail in future proceedings
- the prosecution may use the failure to surrender as evidence of bad character
- the defendant may be tried in absence if absconding before trial
Worked Example 1.3
A defendant absconds before trial and is later arrested. At the new bail hearing, the defendant applies for bail.
Answer: The court will consider the previous absconding as a strong reason to refuse bail or impose very strict conditions.
Legal Consequences of Breaching Bail Conditions
Breaching a bail condition does not create a separate criminal offence (unless the breach is itself a crime). However, it can lead to:
- arrest and being brought before the court
- variation or tightening of bail conditions
- remand in custody pending trial or sentence
Repeated or serious breaches make it more likely that bail will be revoked.
Exam Warning
Breaching a bail condition is not automatically a criminal offence. Do not confuse breach of bail with the offence of absconding (failure to surrender), which is a separate criminal offence.
Procedure Following Breach or Absconding
When a defendant is arrested for breach or absconding:
- The defendant must be brought before the court within 24 hours.
- The court will determine if a breach or absconding occurred.
- For absconding, the court may proceed with prosecution for failing to surrender.
- For breach, the court may vary conditions or remand in custody.
If the defendant had a reasonable cause for failing to surrender (e.g., medical emergency), they must surrender as soon as reasonably practicable after the cause ends. Otherwise, they may still be guilty of the offence.
Worked Example 1.4
A defendant misses court due to hospitalisation but does not attend court until several days after discharge.
Answer: The defendant may be guilty of absconding unless they can show they surrendered as soon as reasonably practicable after the reasonable cause ended.
Impact on Sureties and Security
Key Term: surety A surety is a person who undertakes to ensure the defendant surrenders to custody, and may forfeit a sum of money if the defendant absconds.
Key Term: security Security is money or property deposited with the court as a guarantee of the defendant’s surrender to custody.
Practical Considerations and Human Rights
The court must balance the defendant’s right to liberty (Article 5 ECHR) with the need to ensure attendance at court and the protection of the public and the justice process. Bail decisions must be proportionate and justified.
Revision Tip
Always distinguish between absconding (failure to surrender) and breach of bail conditions. Only absconding is a criminal offence.
Key Point Checklist
This article has covered the following key knowledge points:
- Bail is the release of a defendant pending trial or sentence, subject to surrender and possible conditions.
- Absconding (failure to surrender) is a criminal offence and may result in arrest, prosecution, and forfeiture of sureties or security.
- Breaching a bail condition is not a criminal offence but can lead to arrest, variation of conditions, or remand in custody.
- The court must bring a defendant arrested for breach or absconding before it within 24 hours.
- Absconding or repeated breaches make future bail less likely and may affect sentencing.
- The court must balance the defendant’s right to liberty with the need to protect the public and the justice process.
Key Terms and Concepts
- bail
- bail condition
- abscond
- breach of bail
- surety
- security
