Learning Outcomes
This article outlines the fundamental principles governing bail applications in criminal proceedings. After studying this material, you should possess a clear understanding of the general right to bail as established by the Bail Act 1976, the key statutory exceptions under which bail may be refused, and the concept of conditional bail. Your understanding of the factors influencing bail decisions and the procedures involved will enable you to analyse scenarios and apply the relevant legal rules and principles effectively in SQE1-style assessments.
SQE1 Syllabus
For SQE1, you are required to understand the practical application of bail principles. This includes advising on the likelihood of bail being granted or refused based on specific circumstances, and understanding the implications of bail conditions and breaches. Your knowledge must cover:
- The general right to bail under the Bail Act 1976.
- The main exceptions to the right to bail, including the statutory grounds for refusal (eg risk of absconding, further offences, interference with witnesses).
- The concept of conditional bail and common conditions imposed.
- The procedural aspects of bail applications and further applications.
- 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.
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Under the Bail Act 1976, what is the general presumption regarding bail for a defendant awaiting trial?
- Bail should always be refused for serious offences.
- Bail should be granted unless specific exceptions apply.
- Bail is only granted if the defendant can provide a surety.
- Bail is entirely at the court's discretion with no initial presumption.
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Which of the following is NOT a primary ground listed in Schedule 1, Part 1, para 2 of the Bail Act 1976 for refusing bail based on 'substantial grounds'?
- Believing the defendant would fail to surrender to custody.
- Believing the defendant would commit an offence while on bail.
- Believing the defendant would interfere with witnesses.
- Believing the defendant is likely to plead guilty at trial.
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A court imposes a condition that a defendant must reside at a specific address while on bail. What risk is this condition primarily aimed at mitigating?
- Interference with witnesses.
- Committing further offences.
- Failing to surrender to custody.
- Obstructing the course of justice.
Introduction
When a person is charged with a criminal offence, they will make their first appearance at the magistrates’ court. If the case cannot be concluded at that hearing, the court must decide whether the defendant should be released pending the next hearing or kept in custody. This involves considering an application for bail. Bail allows a defendant to remain at liberty while awaiting trial or sentence, subject to a duty to attend court as required. The Bail Act 1976 (BA 1976) governs these decisions, establishing a fundamental presumption in favour of granting bail. However, this right is not absolute and is subject to important exceptions designed to protect the public and ensure the proper administration of justice. Understanding the framework for bail decisions, including the exceptions and the possibility of conditional bail, is essential for advising clients in criminal practice.
The General Right to Bail
Section 4(1) BA 1976 establishes a general right to bail for individuals accused of an offence. This means a defendant must be granted bail unless one of the specific exceptions outlined in Schedule 1 to the Act applies. This presumption reflects the principle of being innocent until proven guilty and the importance of upholding the right to liberty (ECHR, Art 5).
Key Term: Bail The release of a person subject to a duty to surrender to custody at an appointed time and place. Bail may be unconditional or subject to conditions.
The presumption applies to defendants before conviction and, in some cases, after conviction while awaiting sentence (eg if reports are required). However, the presumption does not apply if a defendant has been convicted and committed to the Crown Court for sentence, or if they are appealing against conviction or sentence.
Exceptions to the Right to Bail
Schedule 1, Part 1 of the BA 1976 sets out the grounds upon which bail may be refused for defendants accused or convicted of imprisonable offences. The most commonly cited grounds (under para 2(1)) require the court to be satisfied that there are substantial grounds for believing that the defendant, if released on bail, would:
- Fail to surrender to custody (ie abscond);
- Commit an offence while on bail; or
- Interfere with witnesses or otherwise obstruct the course of justice.
Key Term: Substantial Grounds A high threshold required to refuse bail. It means more than a mere possibility or suspicion; the court must have solid reasons based on evidence or information before it to believe the relevant risk exists.
Other exceptions exist, including where:
- The defendant was already on bail for another offence when the current offence was committed (para 2A).
- The defendant should be kept in custody for their own protection (para 3).
- The defendant has been arrested for absconding or breaching bail conditions in the current proceedings (para 6).
- There are substantial grounds for believing the defendant would commit an offence causing physical or mental injury (or fear thereof) to an associated person (eg domestic violence cases) (para 2ZA).
- It has not been practicable to obtain sufficient information to make the bail decision (para 5).
- The defendant is already serving a custodial sentence.
Restriction: The ‘No Real Prospect’ Test
Paragraph 1A of Schedule 1 restricts the use of some exceptions (specifically paras 2, 2A and 6 relating to absconding, further offences, interference, being on bail previously, and absconding/breach in current proceedings). These exceptions cannot be used to refuse bail to an adult defendant before conviction unless it appears to the court that there is a real prospect of the defendant receiving a custodial sentence if convicted.
Key Term: Real Prospect This requires the court to consider the likely sentence upon conviction. If custody is not a realistic outcome (eg for a minor offence with no aggravating factors and strong mitigation), then bail cannot usually be refused on the grounds listed in paras 2, 2A, or 6.
Factors Considered by the Court (The Schedule 1, Para 9 Factors)
When deciding whether there are substantial grounds for believing one of the risks in para 2 exists, the court must consider relevant factors, including (para 9):
- Nature and seriousness of the offence: More serious offences with potentially long sentences increase the perceived risk of absconding or further offending.
- Character, antecedents, associations and community ties: A defendant with strong community ties (job, family, settled address) is generally seen as less likely to abscond. Previous convictions (antecedents), especially for similar offences or bail breaches, increase the risk. Associations with criminal networks can also be relevant.
- Bail record: Previous compliance or non-compliance with bail conditions is a strong indicator of future behaviour.
- Strength of the evidence: If the evidence against the defendant appears strong, the incentive to abscond might be higher.
- Risk of harm to associated persons: Particularly relevant in domestic abuse cases.
Worked Example 1.1
David is charged with theft (an either-way offence). He has several previous convictions for theft, committed over the last two years to fund a drug habit. The prosecution objects to bail. On what grounds are they likely to object, and which factors would they rely on?
Answer: The prosecution is likely to object under Sch 1, Pt 1, para 2(1)(b) BA 1976, arguing there are substantial grounds for believing David would commit further offences whilst on bail. They would rely on the para 9 factors: David’s antecedents (previous convictions for similar offences) and potentially his character/associations (ongoing drug habit suggesting a continuing need to fund it through theft). The nature of the offence (theft) might also be relevant depending on the circumstances.
Exam Warning
Remember that the test for refusing bail under Sch 1, para 2 is ‘substantial grounds for believing’, not mere suspicion or possibility. Also, be aware of the ‘no real prospect’ test which restricts the application of certain exceptions for adult defendants pre-conviction where custody is not a likely sentence.
Conditional Bail
If the court has concerns about granting unconditional bail but does not find substantial grounds to refuse bail altogether, it may grant bail subject to conditions (s 3(6) BA 1976). Conditions can only be imposed if they appear necessary to the court to address specific risks.
Key Term: Conditional Bail Bail granted subject to requirements the defendant must meet. Conditions aim to mitigate the risks (identified in Sch 1, para 2 or other relevant grounds) that might otherwise lead to bail being refused.
Conditions must be necessary to prevent the defendant from:
- Failing to surrender to custody;
- Committing an offence while on bail;
- Interfering with witnesses or obstructing justice;
- Ensure they attend appointments for reports (eg pre-sentence reports); or
- For their own protection (or welfare, if a child).
Common conditions include:
- Residence: Requiring the defendant to live and sleep at a specified address.
- Reporting: Requiring the defendant to report to a local police station at specified times.
- Curfew: Requiring the defendant to remain indoors during specified hours (often overnight), sometimes electronically monitored ('tagging').
- Exclusion Zones: Prohibiting the defendant from entering specific areas (eg where witnesses live, or the location of the alleged offence).
- Non-contact: Prohibiting contact (direct or indirect) with named individuals (eg witnesses, co-defendants, victims).
- Surety: Requiring a third party (the surety) to promise to forfeit a specified sum of money if the defendant fails to surrender. The court must be satisfied the surety is suitable and has sufficient means.
- Security: Requiring the defendant (or a third party) to deposit money or valuable items with the court, to be forfeited if the defendant fails to surrender.
- Passport Surrender: Requiring the defendant to surrender their passport to prevent travel abroad.
Worked Example 1.2
Maria is charged with assaulting her neighbour. The prosecution opposes bail, arguing Maria might interfere with the neighbour (a witness) if released. Maria has strong community ties and no previous convictions. What outcome is likely?
Answer: The court might find substantial grounds for believing Maria would interfere with the witness (Sch 1, Pt 1, para 2(1)(c)). However, rather than refusing bail outright, the court could grant conditional bail. A necessary condition might be non-contact with the neighbour, perhaps coupled with an exclusion zone preventing Maria from going near the neighbour's address.
Procedure and Further Applications
Bail applications are typically made orally at the defendant's first appearance in the magistrates’ court. The prosecution outlines any objections, referencing the Sch 1 grounds and para 9 factors. The defence responds, addressing the prosecution's concerns and potentially proposing bail conditions.
If bail is refused, the magistrates must give reasons and issue a certificate of full argument, confirming a full hearing took place. The defendant has a right to make one further fully argued bail application at the next hearing in the magistrates’ court (unless the case has been sent to the Crown Court). Subsequent applications in the magistrates' court can only be made if there has been a change in circumstances or if new arguments are presented that have not been heard before.
A defendant refused bail by the magistrates can also appeal to the Crown Court.
Revision Tip
When analysing a bail scenario, systematically work through the key questions: 1. Is there a general right to bail? 2. Do any exceptions apply (substantial grounds)? 3. Which Sch 1 para 9 factors are relevant? 4. Could conditions mitigate the risks?
Absconding and Breaching Bail Conditions
Failure to comply with bail obligations has serious consequences.
Failing to Surrender (Absconding)
Failing to attend court at the specified time and place without reasonable cause is a criminal offence under s 6 BA 1976. The court will usually issue an arrest warrant. Upon arrest, the defendant is brought back before the court, which will deal with the failure to surrender offence (punishable by imprisonment and/or a fine) and reconsider bail for the original offence. A previous failure to surrender is a strong factor weighing against granting bail again.
Breaching Bail Conditions
Breaching a condition (other than failing to surrender) is not a separate criminal offence. However, it gives the police power to arrest the defendant without a warrant (s 7 BA 1976). The defendant must then be brought before the magistrates’ court (usually within 24 hours), which will determine if a breach occurred. If satisfied there was a breach, the court may remand the defendant in custody or re-admit them to bail, potentially with the same or more stringent conditions.
Worked Example 1.3
Ben is on bail with a condition not to contact prosecution witnesses. He sends a text message to a key witness asking them to "forget what they saw". The witness reports this to the police. What is likely to happen?
Answer: The police have reasonable grounds to believe Ben has breached his bail condition (non-contact). They can arrest him under s 7 BA 1976. Ben will be brought before the magistrates' court. The court will likely find the breach proven. Given the nature of the breach (interference with a witness), the court may well decide to revoke bail and remand Ben in custody until his trial, finding substantial grounds under Sch 1, Pt 1, para 2(1)(c) now exist or are strengthened.
Key Point Checklist
This article has covered the following key knowledge points:
- Defendants generally have a right to bail under s 4 BA 1976, unless specific exceptions apply.
- Bail can be refused under Sch 1 BA 1976 if there are substantial grounds for believing the defendant would fail to surrender, commit further offences, or interfere with witnesses/obstruct justice.
- Other exceptions include the defendant being on bail for another offence, needing custody for their own protection, or absconding/breaching bail in the current proceedings.
- The 'no real prospect' test restricts refusing bail on some grounds if custody is not a likely sentence.
- Courts must consider factors like the offence's seriousness, defendant's character, ties, bail history, and evidence strength (para 9 factors).
- Conditional bail can be granted if necessary to mitigate risks, with common conditions including residence, curfew, reporting, and non-contact.
- Defendants usually have two fully argued bail applications in the magistrates' court before needing new arguments or a change in circumstances.
- Failing to surrender to bail is a criminal offence.
- Breaching bail conditions is not an offence but can lead to arrest and remand in custody.
Key Terms and Concepts
- Bail
- Substantial Grounds
- Real Prospect
- Conditional Bail End Removed Key Terms ---
