Bail applications - Procedure for applying for bail

Learning Outcomes

After studying this article, you will be able to explain the statutory presumption in favour of bail, identify the main exceptions to bail, describe the process for applying for bail in court, and outline the procedures for conditional bail, further applications, and appeals. You will also be able to advise on the practical and strategic considerations for bail applications, including proposing conditions and responding to prosecution objections.

SQE1 Syllabus

For SQE1, you are required to understand the law and procedure relating to bail applications in criminal proceedings. In your revision, focus on:

  • the statutory presumption in favour of bail and its exceptions
  • the grounds for refusing bail and the factors the court must consider
  • the process for making and opposing bail applications in court
  • the use and purpose of conditional bail
  • procedures for further bail applications and appeals against bail decisions
  • 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 a defendant awaiting trial?
  2. Name three main grounds on which the court may refuse bail.
  3. What are common conditions that may be attached to a grant of conditional bail?
  4. What must a defendant show to make a further bail application after an initial refusal?

Introduction

Bail applications are a core feature of criminal procedure. The court must decide whether a defendant should be released from custody pending trial, and if so, on what terms. The law governing bail is primarily found in the Bail Act 1976, which sets out a presumption in favour of bail, the exceptions to that presumption, and the procedures for applying for bail and for imposing conditions.

Statutory Presumption and Exceptions

The Bail Act 1976 creates a general presumption that a defendant should be granted bail before conviction. This reflects the principle that a person is presumed innocent until proven guilty.

Key Term: bail
Bail is the release of a defendant from custody pending trial or another court hearing, subject to a duty to surrender to court and, if necessary, compliance with conditions.

The presumption in favour of bail is not absolute. The court may refuse bail if one or more statutory exceptions apply.

Key Term: exceptions to bail
Exceptions to bail are statutory grounds that allow the court to refuse bail, such as risk of absconding, committing further offences, or interfering with witnesses.

The main grounds for refusing bail are:

  • substantial grounds for believing the defendant would fail to surrender to custody
  • substantial grounds for believing the defendant would commit further offences while on bail
  • substantial grounds for believing the defendant would interfere with witnesses or obstruct the course of justice

Other exceptions include the need to protect the defendant, insufficient information to make a decision, or the defendant already serving a custodial sentence.

Worked Example 1.1

Question: A defendant is charged with burglary. He has no fixed address and three previous convictions for failing to surrender to bail. The prosecution objects to bail. What is the likely outcome?

Answer: The court is likely to refuse bail on the ground that there are substantial grounds for believing the defendant would fail to surrender, given his lack of address and history of absconding.

Conditional Bail

If the court is not satisfied that unconditional bail is appropriate, it may grant bail subject to conditions designed to address specific risks.

Key Term: conditional bail
Conditional bail is bail granted with requirements attached, such as residence, reporting, or curfew, to reduce risks identified by the court.

Common bail conditions include:

  • residence at a specified address
  • reporting to a police station at set intervals
  • curfew (possibly with electronic monitoring)
  • non-contact with named individuals (e.g., witnesses or victims)
  • exclusion from specified areas
  • surrender of passport or travel documents
  • provision of a surety or security

The court must ensure that any conditions imposed are necessary, relevant to the risks, and proportionate.

Worked Example 1.2

Question: A defendant is charged with assault and the prosecution fears he may contact the complainant. What condition could the court impose?

Answer: The court could impose a condition prohibiting the defendant from contacting the complainant directly or indirectly.

Procedure for Applying for Bail

When a defendant first appears in court, the issue of bail must be considered. The process is as follows:

  1. The prosecution states whether it objects to bail and on what grounds.
  2. The prosecution outlines the facts, the defendant’s criminal record, and any relevant bail history.
  3. The defence responds, addressing each ground for objection and may propose conditions to mitigate risks.
  4. The court decides whether to grant bail (with or without conditions) or remand the defendant in custody.

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

If bail is refused, the court must give reasons and issue a certificate of full argument.

Worked Example 1.3

Question: The prosecution objects to bail on the ground of risk of witness interference. The defence proposes a condition that the defendant not contact any prosecution witnesses. What should the court consider?

Answer: The court should consider whether the proposed condition is sufficient to address the risk. If so, conditional bail may be granted. If not, bail may be refused.

Further Applications for Bail

If bail is refused, the defendant is entitled to make one further full application at the next hearing. Any subsequent application may only be made if there is a change in circumstances or new information.

Key Term: further application for bail
A renewed application for bail after an initial refusal, permitted only if there is a new argument or change in circumstances.

Examples of a change in circumstances include:

  • new evidence relevant to the risks
  • a change in the defendant’s personal situation (e.g., securing accommodation)
  • the passage of time without trial

Appeals Against Bail Decisions

A defendant refused bail by the magistrates’ court may appeal to a Crown Court judge in chambers. The prosecution may also appeal against the grant of bail for imprisonable offences. The appeal is a rehearing and the judge may grant or refuse bail.

Key Term: bail appeal
An application to a higher court to review a decision to grant or refuse bail.

Absconding and Breach of Bail Conditions

A defendant who fails to surrender to bail without reasonable cause commits a criminal offence. Breach of bail conditions is not itself an offence but may result in arrest and reconsideration of bail.

Key Term: abscond
To fail to surrender to custody as required by bail, without reasonable excuse.

If a defendant breaches bail conditions, the police may arrest them and bring them before the court, which will then decide whether to grant bail again (possibly with more stringent conditions) or remand in custody.

Exam Warning

If a defendant is refused bail and wishes to appeal, ensure that a certificate of full argument has been issued by the court. Without this, the Crown Court cannot hear the appeal.

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.
  • The main exceptions to bail are risk of absconding, further offences, or interference with witnesses.
  • The court may impose conditions on bail to address specific risks.
  • The procedure for applying for bail involves prosecution objections, defence responses, and a judicial decision.
  • Further applications for bail require a change in circumstances or new information.
  • Appeals against bail decisions are possible for both defence and prosecution.
  • Failure to surrender to bail is a criminal offence; breach of conditions may result in arrest and reconsideration of bail.

Key Terms and Concepts

  • bail
  • exceptions to bail
  • conditional bail
  • certificate of full argument
  • further application for bail
  • bail appeal
  • abscond
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