PastPaperHero | Bail applications - Further applications and variations

Learning Outcomes

This article provides a detailed framework for managing bail applications after an initial refusal, encompassing the right to make further or renewed applications, the strict conditions under which later arguments can be heard, and the evidence required to demonstrate genuine changes in circumstance. It covers the court’s duty to reassess bail at each relevant hearing and elucidates what amounts to a sufficient change in facts or law for a new application. Guidance is given on both the substantive and procedural elements for varying bail conditions, including who may apply, how to structure a persuasive application, and evidentiary requirements for supporting or challenging bail variations.

The article sets out the practical and legal processes for appealing decisions on bail, covering both defence routes to the Crown Court (via the certificate of full argument), considerations for rare High Court challenges, and the limited but critical avenue for prosecution appeals under the Bail (Amendment) Act 1993. The text examines the practical interplay between evidential duty, advocacy, and client advice in this domain, with a strong focus on how the law balances risk management and proportionality of conditions, the interface with criminal procedure, and the importance of exploiting all appropriate routes to ensure the fair administration of justice.

Additionally, key areas such as the duty to ensure proceedings respect Article 5 (right to liberty) and Article 6 (right to a fair trial) ECHR form the discussion, particularly in relation to bail decisions, conditions, and the fairness of process. The use of sample scenarios and worked examples solidifies the understanding of when and how further applications can be made, the correct evidential approach on variation, and the structured steps for both making and opposing appeals.

SQE1 Syllabus

For SQE1, you are required to understand the law and procedure governing further bail applications, variation of bail conditions, and defence/prosecution appeals, with a focus on the following syllabus points:

the grounds upon which a further bail application can be made after an initial refusal
the procedure for applying to vary bail conditions, including who can apply and on what basis
the routes of appeal available to the defence against a refusal of bail
the limited circumstances in which the prosecution can appeal against a grant of bail
the relevant courts involved in hearing bail appeals
the content and function of a certificate of full argument for Crown Court appeals
practical timelines and required notices for defence and prosecution bail appeals
the court’s duty to consider bail at each subsequent hearing and the meaning of “change in circumstances”
proportionality and necessity when imposing or varying bail conditions, including electronic monitoring, curfew, residence and non-contact orders

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.

True or False: A defendant can make unlimited bail applications to the magistrates' court on the same grounds.
Which court typically hears a defence appeal against a refusal of bail by the magistrates' court? a) High Court (Divisional Court) b) Crown Court c) Court of Appeal (Criminal Division) d) Supreme Court
Can the prosecution appeal against a decision by the magistrates' court to grant bail? If so, under what circumstances?

Introduction

Once an initial decision on bail has been made in the criminal process, circumstances can change—with new information arising, case progression occurring, or personal or procedural developments affecting perceived risks. Both the defence and prosecution have mechanisms for re-engaging the court’s attention: defendants may apply for bail again following an initial refusal, parties may move to vary or contest existing bail conditions, and distinct avenues of appeal are open to both sides, albeit with strict limitations and procedural requirements. This article examines, in a fully structured and practical manner, the law and procedure governing further bail applications, variations, and appeals, including statutory requirements, evidentiary practice, and strategic considerations for advocacy.

Key Term: Further Full Argument
A subsequent bail application where the defence can present any arguments of fact or law, even those previously considered by the court at the initial bail hearing. This right applies only at the first hearing after bail was initially refused.

Key Term: Certificate of Full Argument
A certificate issued by the magistrates’ court confirming that it has heard full arguments on bail on two occasions (the initial hearing and the first hearing after refusal) before refusing bail. It is required for an appeal to the Crown Court.

Key Term: Change in Circumstances
A new factor or development relevant to the bail decision that has arisen since the last full bail application was heard. Examples include a change in address, offer of a surety, or significant weakening of the prosecution case.

Further Applications for Bail

The presumption in favour of bail under the Bail Act 1976 remains central, with the court under a recurring duty to consider bail at every substantive hearing where the defendant remains in custody and has not been convicted. However, the balance between affording defendants a meaningful chance to revisit their liberty and preventing repetitive, meritless applications is achieved via a structured rule set distinguishing the first and later applications after an initial refusal.

First Hearing After Refusal

A defendant refused bail at their first hearing is entitled, as of right, to make a further full argument at the next hearing before the magistrates’ court. This is a procedural safeguard to ensure all material submissions—both factual and legal—are fully canvassed and reconsidered. The second full argument may include:

Any grounds relied upon at the first hearing, even if rejected;
Further legal argument, including new case law or statutory interpretation;
Additional documentary, witness, or expert evidence supporting the defence case or challenging the prosecution’s risk assertions;
Enhanced proposals for bail conditions (surety, address, employment proofs, electronic monitoring);
Counter-arguments to anticipated prosecution objections.

The court must hear and adjudicate upon the entire case for bail without excluding points ruled upon previously. In practice, the second hearing is the principal opportunity to respond to and address vulnerabilities in the initial application—such as by proposing more robust conditions, gathering corroborative documentation (such as formal job offers or surety evidence), or by producing testimonials from supervisors or probation officers. It is important that all arguments and evidence are meticulously recorded in the court file to support the progression to appeal if necessary.

If bail remains refused following this hearing, the magistrates’ court must issue a Certificate of Full Argument. This certificate is a statutory precursor to an appeal to the Crown Court—without it, any appeal will be summarily rejected by the Crown Court (see: Bail Act 1976; CrimPR r 14.8; see also practice discussed in key legal texts).

Subsequent Hearings

At any subsequent remand hearing beyond the first further full hearing, the legal position changes significantly. The court is not obliged to rehear arguments previously advanced unless the defence can point to fresh arguments or a material change in circumstances. This rule is contained in Schedule 1, Part IIA, paragraph 2 of the Bail Act 1976, ensuring judicial resources are preserved and applications are focused on genuine developments.

A change in circumstances is generally accepted as:

New evidence which diminishes the prosecution case (such as withdrawal of a key witness, adverse findings on forensic evidence, or significant retraction in anticipated witness testimony);
Personal developments affecting risk assessment (obtaining stable accommodation, verified employment, new or increased surety, fresh medical evidence that affects addressability of risk or supports vulnerability);
Progress in the proceedings that affects perceived risk (charge reduction, prosecution elects not to proceed on certain counts, prosecution discloses previously withheld exculpatory material, excessive delay, or the exposure of procedural unfairness);
Fulfilling or proposing risk-tailored alternative bail packages (e.g. confirming a verified bail hostel placement, installation of electronic monitoring, or new social services involvement to address safeguarding concerns).

It is not enough to restate or slightly reframe previously rejected arguments. The defence must articulate precisely how the relevant risk profile has changed or been negated since the last fully argued hearing, and should support this with evidence whenever possible. Courts expect a short but clear written chronology and supporting documentation.

Key Term: New Argument
A point of fact or law relevant to the grant of bail which has not previously been advanced or adjudicated upon in the current proceedings.

Worked Example 1.1

David is charged with theft (an either-way offence) and is refused bail at his first appearance on 1st June due to having no fixed address and previous convictions for failing to surrender. He is remanded in custody. At his next hearing on 8th June, his solicitor makes a full bail application, again arguing that the prosecution objections are not made out. Bail is refused. At the following hearing on 15th June, David’s sister offers to provide him with a stable address and act as a surety.

Answer:
Yes. Although the court has heard full arguments twice (on 1st and 8th June), the offer of a stable address and a surety represents a significant change in circumstances. Therefore, the solicitor can make a further application based on these new factors, arguing they address the court's previous concerns about failing to surrender.

Worked Example 1.2

Anya is remanded on an either-way charge after bail was refused, primarily because she lacked verified accommodation. Before the next hearing, a charitable bail hostel confirms a place for Anya, with conditions including a curfew and electronic monitoring, and her employer confirms a part-time evening shift that does not conflict with curfew hours.

Answer:
Treat this as a change in circumstances. File/email the hostel’s letter confirming the placement and monitoring, together with the employer’s letter detailing hours. Propose specific bail conditions (residence at the hostel, curfew compatible with the shift, electronic monitoring, reporting conditions). Explain how the package directly mitigates the prior risk of failing to surrender and reoffending.

Common Pitfalls and Good Practice

It is essential that the defence makes full use of the first permitted further full application, as failing to do so will preclude later repetition of original arguments without a demonstrable change in circumstances. In practice, ensure a complete and contemporaneous note of all grounds and evidence is kept—this will also support any eventual application for an appeal and provide a record in the event of further changes arising.

Where possible, review the remand notes, disclosure, and risk assessment comments for any indication of misunderstanding or misapplication by the previous bench or judge. A well-prepared advocate often pre-empts prosecution counter-arguments by assembling a comprehensive risk mitigation bundle.

Exam Warning

Be clear about the distinction between the first hearing after refusal (where full arguments can be repeated) and subsequent hearings (where new arguments or a change in circumstances are required). Questions may test your understanding of when a further application is permissible.

Variation of Bail Conditions

Bail conditions are imposed to manage specific risks associated with releasing an accused pending trial—as such, they must remain justifiable and proportionate throughout the currency of the case. Circumstances may change, rendering initial conditions obsolete, unworkable, or unduly harsh. Section 3(8) of the Bail Act 1976 allows the court (whether the current remand court or one to which the defendant is bailed) to vary, add, or remove bail conditions at any time before a case's substantive conclusion. Either party, or the court on its own initiative, may apply for or propose a variation.

Grounds for Variation

Common grounds for seeking a variation include:

A significant change in the defendant's circumstances—for example, start of new employment requiring different curfew hours, confirmation of regular medical treatment, counseling, or caring commitments that clash with reporting times or curfews;
Abandonment or resolution of risks (such as witnesses having given evidence and no longer at risk of interference, or the cessation of threats that previously justified exclusion zones);
Demonstrably impractical, overly restrictive, or unworkable conditions (such as exclusion zones that restrict access to essential services, medical appointments, or probation supervision, curfews that hinder legal compliance or employment, or passport surrender where no realistic flight risk exists);
Fresh information leading to increased or decreased risk—e.g., evidence of breach justifying tighter conditions, or verification of defendant’s reliability warranting relaxation;
Court’s own motion, particularly where a lengthy remand period or intervening legal changes prompt assessment of whether the bail framework remains fair.

The varied or new condition must still be justified by ongoing risk and must be no more than necessary to address the specific grounds for bail refusal (e.g. failing to surrender, offending on bail, interference with witnesses, or obstructing justice). In each case, electronic monitoring such as tagging, reporting requirements, verified addresses, or non-contact terms may be deployed—but all requirements must be compatible with the defendant's factual and legal circumstances, including age, health/disability, dependents, and employment.

Key Term: Proportionality (Bail Condition)
The requirement that bail conditions imposed are appropriate and not excessive in relation to the legitimate aim of preventing absconding, reoffending, or interference with justice.

Procedure for Variation

The application to vary bail conditions should be made in writing (particularly in the magistrates’ court), setting out:

The current conditions in force and the specific variation now sought;
The reason(s) why variation is justified, addressing both risk and the principle of proportionality/necessity;
Factual evidence in support (e.g. contract of employment, verified medical appointment, service-level agreement with a bail hostel, new surety's identity and financial means, proof that an earlier risk is resolved or removed);
The preferred form of the varied condition—precise wording assists the court and avoids ambiguous or conflicting conditions.

For practical purposes, it is important to serve such an application on the other party; if time is short (for example, if the defendant is at imminent risk of losing employment due to a curfew), mark it as urgent and provide clear notice of material impact if immediate variation is denied. The court may decide the matter on the papers if appropriate, but frequently lists the matter for a brief hearing.

If the magistrates' court has committed the case to the Crown Court, all subsequent applications—including applications for varied conditions—must be made to the Crown Court. Police-imposed conditions (prior to first charge) may only be altered by the police, whereas variations following charge and initial court appearance must be made via the court.

A court may also act on its own motion—particularly at any return listing, review, or consequential hearing—if new information comes to light or to ensure compliance with ECHR Article 5 (right to liberty) and Article 6 (right to a fair trial).

It is good practice for the applying party to reference, where relevant, the existing case management or pre-trial directions and to anticipate any collateral effect (for example, impact on custody time limits, current prosecution or defence obligations for disclosure or preparation).

Worked Example 1.3

Aisha is granted conditional bail with a nightly curfew from 7 pm to 7 am. She subsequently receives a job offer requiring her to work shifts ending at 10 pm.

Answer:
Aisha’s solicitor should apply to the court under s 3(8) Bail Act 1976 to vary the curfew condition. They should provide evidence of the job offer and explain why the current curfew prevents Aisha from taking up employment, arguing that a later start time for the curfew (for example, 11 pm) would still be sufficient to manage any perceived risks while allowing her to work. If electronic monitoring is already in place, confirm that monitoring can be adjusted accordingly.

Worked Example 1.4

Marcus is on bail with an exclusion zone covering a town centre where the complainant works. The case progresses and the complainant moves abroad indefinitely. Marcus has secured employment in the town centre.

Answer:
Yes. Apply to vary or remove the exclusion zone, evidencing the complainant’s relocation and the job offer. Explain that the exclusion zone is no longer necessary to manage witness interference and that lawful employment within the zone is now available. Propose retaining other conditions (for example, non-communication, reporting) to reassure the court while improving proportionality.

Appeals Against Bail Decisions

The law provides defined, carefully structured rights of appeal for both the defence and prosecution, operating as important checks and balances within the bail system. These rights are constrained by mandatory requirements as to notice, timelines, and, for the defence, demonstrating that the court below has properly considered all material arguments (hence the requirement for a Certificate of Full Argument). Appeals in this area are generally conducted swiftly and ‘on the papers’ in chambers, particularly where liberty is at stake and an accused is remanded pending further proceedings.

Defence Appeals

Where a magistrates’ court refuses bail following a full argument (as evidenced by the issuing of the Certificate of Full Argument), the defendant has a right of appeal to the Crown Court under standard procedures (CrimPR r 14.8). The steps are:

Submission of a written application to the Crown Court (copying the magistrates’ court and the prosecution), specifying the decision appealed, the grounds for appeal, and proposed bail conditions;
Attachment of the original Certificate of Full Argument and any essential supporting evidence (surety details, employment confirmation, addresses, risk mitigation proposals);
Listing of the appeal, usually within 48 hours of notice, with an expedited hearing before a judge in chambers;
Both prosecution and defence are entitled to make full submissions afresh—the appeal is a rehearing, and the Crown Court is not limited to reviewing solely the magistrates’ reasons. All relevant, up-to-date material may be presented;
The Crown Court judge may grant bail (on any terms) or refuse it, with the outcome notified swiftly to all relevant parties (including, if necessary, the corrections or remand facility for immediate release).

Where the original refusal of bail occurred in the Crown Court (for example, in an indictable-only case), the only further avenue is an application to the High Court, often by judicial review or 'case stated' procedure. These are rare and must raise exceptional points of practice or law.

In practice, tactical representation often seeks to make full use of the two full applications before the magistrates’ court—refining the bail package, addressing bench-specific concerns, and ensuring that the full argument opportunity is not wasted prior to the more resource-intensive appeal process in the Crown Court.

Worked Example 1.5

Sofia’s second full application for bail in the magistrates’ court is refused, and the court issues a certificate of full argument. The defence propose a new surety and electronic monitoring on appeal.

Answer:
Include the certificate of full argument, a concise appeal notice explaining why bail should now be granted, a proposed condition set (residence, reporting, electronic monitoring, non-contact), supporting evidence (surety’s ID, proof of financial means, tenancy or hostel letter, employment/medical documentation), and a short risk analysis addressing each Bail Act exception. Serve on the magistrates’ court, Crown Court, and CPS. Be ready to refine proposals at the hearing.

Prosecution Appeals

The prosecution’s right of appeal against a bail decision is more limited and carefully prescribed, reflecting the overarching presumption in favour of bail and the historical concerns regarding prosecutorial interference with liberty. Only in cases where the defendant is charged with an imprisonable offence may the prosecution challenge a grant of bail, and strict steps must be adhered to, as follows:

Oral notice must be given to the court immediately at the end of the hearing when bail is granted and before the defendant is released—delay invalidates the right.
Written notice must be served within two hours of the oral notice, including the statutory reason(s) supporting the appeal (substantial risks under the Bail Act 1976).
The appeal is heard by a Crown Court judge in chambers, generally within two business days (excluding weekends and bank holidays); the defendant remains remanded in custody pending the outcome.
The hearing in the Crown Court is a rehearing of the bail application—either party may present updated evidence or argument, and the judge may uphold, vary, or reverse the original decision.

If the Crown Court grants bail at first instance, in theory, the prosecution may appeal this decision to the High Court, but only where the bail grant has not arisen due to a defence appeal from the magistrates’ court—there is no right to “second appeal” by the prosecution in such circumstances.

Worked Example 1.6

The magistrates grant bail to Ben, charged with burglary (an imprisonable, either-way offence). The prosecution strongly opposed bail, citing Ben's previous convictions for similar offences committed whilst on bail. The prosecutor believes the decision is wrong.

Answer:
The prosecutor must immediately give oral notice to the magistrates' court, before Ben is released, that they intend to appeal the decision to grant bail under the Bail (Amendment) Act 1993. They must then follow this up with written notice within two hours. Ben will remain in custody pending the Crown Court appeal.

Timing and Practicalities

Both defence and prosecution appeals are intended to be swift. The usual timeframe from notice to hearing is 24–48 hours, ensuring that the liberty of the subject is not unduly affected and that the court can allocate resources proportionately. Subsequent applications for bail in the Crown Court (following an initial hearing or appeal) similarly require new arguments or a demonstrable shift in relevant circumstances.

Where subsequent bail is sought in the Crown Court arising from developments after the initial appeal—such as withdrawal of prosecution witnesses, evidential collapse, new personal circumstances, or case progression—this must be tied to substantive evidence and presented to the Crown Court for consideration (Bail Act 1976, judicial practice).

Key Point Checklist

This article has covered the following key knowledge points:

A defendant is entitled to make one further full bail application in the magistrates' court at the first hearing after bail is initially refused.
Subsequent applications in the magistrates' court require new arguments or a change in circumstances, evidenced with specificity.
A Certificate of Full Argument is needed for a defence appeal to the Crown Court against magistrates' refusal of bail.
Bail conditions can be varied by the court on application by either party or on the court's own initiative if circumstances change or the condition is no longer necessary/appropriate.
Variation applications should be evidence-backed and propose risk-tailored conditions that remain necessary and proportionate.
The defence can appeal a magistrates' court bail refusal to a Crown Court judge in chambers; the appeal is a rehearing and can consider fresh material.
The prosecution can appeal a magistrates' decision to grant bail (for imprisonable offences) to a Crown Court judge in chambers, provided immediate oral notice is given and written notice follows within two hours.
Pending a prosecution appeal against a grant of bail, the defendant is remanded in custody; the Crown Court hearing must be held promptly (typically within two business days).
Where the Crown Court grants bail at first instance, a prosecution appeal may be made to the High Court; but there is no prosecution appeal where the Crown Court granted bail following a defence appeal from the magistrates’ court.
Effective advocacy in bail hearings requires addressing each statutory risk head with targeted conditions, and ensuring reasons and evidence are recorded for future applications or appeals.
The court must abide by the presumption in favour of bail unless sufficient evidence justifies continued detention; all conditions imposed must be justified, proportionate, and tailored to identified risk.

Key Terms and Concepts

Further Full Argument
Certificate of Full Argument
Change in Circumstances
Proportionality (Bail Condition)
New Argument

Bail applications - Further applications and variations