Bail applications - Right to bail and exceptions

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Overview

Bail applications are a vital part of criminal proceedings, balancing individual freedom with public safety. For SQE1 FLK2 exam candidates, a thorough understanding of bail rights, exceptions, and procedures is essential. This article covers the legal framework under the Bail Act 1976, recent case law, and the interaction between domestic legislation and human rights. By examining complex scenarios and judicial reasoning, students will gain the analytical skills needed for the SQE1 FLK2 exam.

The Right to Bail: Principles and Statutory Framework

Bail rights are central to the criminal justice system, supporting the presumption of innocence and liberty. The Bail Act 1976 enshrines this, favoring bail for defendants awaiting trial or sentence.

Statutory Basis and Interpretation

Section 4 of the Bail Act 1976 mandates bail unless specific conditions apply. This presumption covers all cases, including those in the Crown Court, as seen in R v Nottingham Justices, ex parte Davies [1981] QB 38. However, this right isn't absolute, and courts must weigh various factors in bail decisions.

Human Rights Considerations

Bail intersects with Article 5 of the European Convention on Human Rights, safeguarding liberty. In Caballero v United Kingdom (2000) 30 EHRR 643, the European Court of Human Rights stressed that pre-trial detention should be rare, supporting the bail presumption.

Conditional Bail: Balancing Act

Courts may impose bail conditions to manage risks. Conditions must be appropriate and justified, as shown in R (Hookway) v Burnley Magistrates' Court [2011] EWHC 1763 (Admin). Typical conditions include:

  • Residence requirements
  • Curfews
  • Reporting to police
  • Surrender of travel documents
  • Non-contact orders

Example: In R v Melles [2017] EWCA Crim 1391, the Court of Appeal upheld strict bail conditions, such as electronic tagging and a 24-hour curfew, for a defendant charged with serious drug offenses. These were necessary to prevent absconding and reoffending, balancing freedom and public safety.

Exceptions to the Right to Bail: Analysis

Though there is a presumption for bail, Schedule 1 of the Bail Act 1976 details exceptions where bail may be refused. These require careful application.

Main Grounds for Bail Refusal

  1. Risk of Absconding: Factors include ties to the jurisdiction, potential sentence severity, and past compliance with bail. In R v Kyeremeh [2019] EWCA Crim 1691, the Court of Appeal stressed a comprehensive assessment of flight risk, considering personal circumstances and the strength of the prosecution's case.

  2. Likelihood of Further Offenses: This requires evaluating the defendant's criminal history, nature of the offense, and behavior patterns. In R v Payne [2019] EWCA Crim 1225, the court denied bail due to a high risk of reoffending, given the defendant's extensive record and the offense's nature.

  3. Interference with Witnesses or Justice Obstruction: Protects the judicial process. In R v Khan [2020] EWCA Crim 163, the Court of Appeal highlighted the importance of this in cases involving organized crime or past interference attempts.

Additional Considerations

  • Defendant's Protection: Bail may be refused for safety concerns, applied cautiously as in R (Fergus) v Southampton Crown Court [2008] EWHC 3273 (Admin), where the court cautioned against overusing this ground.

  • Already Serving a Sentence: Applies to defendants already imprisoned for other offenses, clarified in R v Nottingham Crown Court, ex parte McDonald [1991] 1 WLR 1186.

No Real Prospect of Custody

While not a statutory exception, the likelihood of a custodial sentence is key. In R v Ghosh [2019] EWCA Crim 1103, the Court of Appeal noted that if a custodial sentence is improbable, it should weigh heavily in favor of bail unless there are strong reasons otherwise.

Procedure for Applying for Bail: A Guide

The bail process is adversarial, requiring practitioners to handle procedural details and make strong arguments.

Initial Application and Appeals

  1. Magistrates' Court: Initial bail decisions happen here, with the prosecution presenting objections and the defense suggesting mitigating factors and conditions.

  2. Crown Court: For indictable offenses, applications may go to the Crown Court with broader powers to set conditions.

  3. Appeals and Variations: Sections 5B and 5C of the Bail Act 1976 allow for challenging bail decisions or changing conditions. In R (Guiste) v Woolwich Crown Court [2018] EWHC 895 (Admin), the High Court stressed reconsideration due to changed circumstances.

Example: In a fraud case, the defense might propose conditions like electronic tagging, daily reporting, and a substantial surety. The court would assess whether these conditions address the prosecution's concerns, like flight risk or witness interference.

Evidential Considerations

Courts use various information sources for bail decisions:

  • Police bail summaries
  • Pre-sentence reports
  • Character references
  • Community ties
  • Sureties or securities details

In R v Loughborough Magistrates' Court, ex parte Ogden [1995] 2 Cr App R 476, the court stressed the need for accurate information in bail hearings, obligating both prosecution and defense to provide reliable evidence.

Absconding and Breaching Bail: Consequences and Legal Aspects

Non-compliance with bail conditions or court attendance can have serious effects on current and future bail applications.

Legal Framework

  1. Failure to Surrender: Section 6 of the Bail Act 1976 outlines the offense of not surrendering to custody. In R v Hayden [2001] 1 WLR 1680, the Court of Appeal clarified this offense occurs upon failure to appear as required.

  2. Condition Breaches: Though not a criminal offense, breaching bail can result in arrest and bail reconsideration. Section 7 of the Bail Act 1976 allows arrest for breaches.

Judicial Approach to Breaches

Courts view bail breaches seriously, shown in R v Ghosh [2015] EWCA Crim 1190, where bail breaches resulted in custodial sentences. In R v Hackett [2019] EWCA Crim 983, the court advocated for proportionality, especially with minor breaches.

Example: A defendant on bail for assault breaches a no-contact order by messaging the complainant. Upon arrest, the court might remand them in custody. At the hearing, the defense could argue for bail reinstatement with stricter conditions, while the prosecution would seek custody based on non-compliance.

Impact on Future Applications

A record of breaches affects future bail considerations. In R v Acton Crown Court, ex parte Betts [1987] Crim LR 629, the court held that previous breaches are important when assessing new applications.

Conclusion

Understanding bail applications requires knowledge of legal principles and procedures. SQE1 FLK2 candidates should study case studies and statutory guidelines to understand bail-related challenges. Balancing individual rights with public safety remains central to these decisions.