Learning Outcomes
After reading this article, you will be able to explain when a defendant has a right to bail or may be refused bail, identify the grounds for imposing bail conditions, distinguish absconding from breaching bail, and outline the correct procedural steps for applying for bail, refusals, and further applications. You will be ready to analyze scenarios involving bail in the SQE2 exams.
SQE2 Syllabus
For SQE2, you are required to understand the law and procedure relating to bail applications. Focus when revising on:
- the general presumption in favour of bail and its statutory basis
- the exceptions to this presumption and how they differ by offence type
- the range, purpose, and examples of bail conditions
- the distinction and consequences of absconding versus breach of bail conditions
- the formal process and advocacy required for defending and opposing bail applications
- further bail applications and avenues for appeal
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.
- List three main statutory exceptions to the general right to bail for an adult charged with an imprisonable offence.
- Give two examples of bail conditions commonly imposed to address a perceived risk of absconding.
- What is the difference in law between "absconding" and "breaching bail conditions", and what are the respective consequences?
- What must a defence advocate do procedurally at a fully contested bail hearing in the magistrates’ court?
Introduction
Bail applications are a core part of criminal procedure, both at the police station and in court. You must know when and why bail may be granted or refused, what conditions may be imposed, and what happens when bail is not complied with. This article sets out the practical and procedural rules governing bail that you need to advise clients accurately and perform confidently in SQE2 assessments.
The General Right to Bail
The starting point in criminal litigation is a statutory presumption that a defendant has a right to bail prior to conviction, provided by the Bail Act 1976. The aim is to ensure that only those who pose clear and specific risks (e.g. of absconding, reoffending, or interfering with justice) are detained before their trial or sentencing.
Key Term: Bail
Bail means the defendant is released from custody by the police or court (before or during trial or before sentence) on condition they return to court when required. Bail can be unconditional or subject to specific requirements ("conditional bail").
Exceptions—When Bail Can Be Refused
The right to bail is not absolute. Schedule 1 of the Bail Act 1976 lists statutory exceptions—circumstances in which bail may be refused. These exceptions differ depending on whether the defendant is charged with an imprisonable offence, a summary non-imprisonable offence, or is already convicted awaiting sentence.
The main exceptions where the court may refuse bail include if the court is satisfied that there are substantial grounds for believing that, if released on bail (with or without conditions), the defendant would:
- fail to surrender to custody
- commit an offence while on bail
- interfere with witnesses or otherwise obstruct the course of justice.
Key Term: Presumption in Favour of Bail
The default rule that an unconvicted defendant should be released unless specific, statutory reasons justify refusal.
Additionally, bail may be refused to protect the defendant (e.g. from reprisals), if already serving a custodial sentence, for own welfare (for a child), or where sufficient information (such as address or antecedents) cannot reasonably be obtained.
Extra restrictions apply to the most serious offences. For example, for those charged with murder or certain violent or sexual offences and with relevant prior convictions, bail will only be granted in "exceptional circumstances," and, for murder, bail may only be granted by a Crown Court judge.
Worked Example 1.1
A defendant is charged with robbery and has a history of failing to return to court when previously bailed. What are the likely grounds for the prosecution to oppose bail?
Answer:
The prosecution will point to the substantial risk the defendant will fail to surrender, relying on the defendant's earlier failures to attend and possibly their lack of stable address.
Conditional Bail
Where the court identifies risks but considers they can be managed, it may grant bail on "conditions." Conditions must be necessary and proportionate to address the specific risks identified.
Common bail conditions include:
- residence at a stated address
- reporting to a police station at set times
- a curfew
- not to contact certain individuals (e.g. witnesses or co-defendants)
- not to enter a specified area
- surety or financial security (a promise or deposit that is forfeited if defendant absconds)
- surrender of passport
Key Term: Conditional Bail
Release from custody subject to one or more specific requirements intended to minimise risks, such as absconding or interference with witnesses.
Worked Example 1.2
A first-time defendant is charged with a shop theft and has no record of absconding. Police object to bail on grounds of possible reoffending. Which conditions might the court impose?
Answer:
The court might grant bail with conditions such as a ban on entering the store in question, a curfew, or a requirement to report to a police station to reduce the risk of further offences.
Procedure at a Bail Application
Applications for bail are usually made at the first court hearing. The prosecution will explain the facts, the objections to bail, and present any relevant evidence (such as convictions, past breaches, or history of absconding).
The defence must then respond, addressing each ground of opposition, suggesting suitable bail conditions if concerns are raised, and presenting factors like community ties, stable accommodation, or employment that reduce flight risk. The court expects advocates to present arguments clearly, respond to opposing submissions, and ensure the proposal of realistic and practical conditions.
If bail is refused, reasons must be given. The court will issue a "certificate of full argument" if requested, which is necessary for appeal.
Key Term: Certificate of Full Argument
A record that a fully argued bail application was heard and refused, required for appealing bail refusal to the Crown Court.
Exam Warning
At a further hearing, a defendant is entitled to a second full application for bail. Any later application may only raise new arguments or fresh evidence. Do not raise identical arguments repeatedly.
Further Applications and Bail Appeals
If bail is refused, the defendant may make a full new application at the next hearing. Subsequent applications are allowed only if there is new information or circumstances (e.g. fresh evidence, a job offer, a new address, or available surety).
Appeals against refusal of bail by the magistrates’ court are made to the Crown Court (for adults), following a written notice served promptly along with the certificate of full argument. The Crown Court will rehear the application and may grant or confirm refusal of bail.
The prosecution may only appeal a magistrates’ grant of bail in rare, serious cases, and must notify its intention immediately before the defendant is released.
Absconding and Breaches of Bail
Failure to surrender to bail ("absconding") is a criminal offence under section 6 of the Bail Act 1976. If a defendant absconds, the court will issue a warrant for arrest, and may impose harsher conditions or remand in custody on next appearance. Absconding may also lead to forfeiture of any surety.
Breach of a condition of bail (e.g. breaking curfew, entering a forbidden area) is not a separate criminal offence but may result in arrest and reappearance before the magistrates’ court within 24 hours. The court will then reconsider bail, which may be re-granted (possibly with stricter conditions) or refused.
Key Term: Absconding
Failing to surrender to custody at the appointed place and time, without reasonable excuse; this is a criminal offence.Key Term: Breach of Bail Conditions
Failing to comply with a specific bail condition, which is not usually a criminal offence, but may result in arrest and review (or tightening) of bail.
Worked Example 1.3
A defendant released on conditional bail with a night curfew and a ban on contacting a witness is arrested at midnight in the witness’s street but claims the meeting was accidental. Is this absconding or breach of bail? What can the police do?
Answer:
This is a breach of bail conditions, not absconding. Police may arrest the defendant without warrant and bring them before court within 24 hours to reconsider bail. Only if they also failed to attend court as required would it be absconding.
Consequences of Breaches
Absconding carries serious consequences, including up to three months' imprisonment in the magistrates’ court (longer in the Crown Court) and/or a fine. Sureties may also be ordered to pay. Police bail (before first appearance) and its breach have slightly different rules, but for SQE2, the main focus is on court bail.
A breach of conditions is not in itself punishable by further charges, but will nearly always result in stricter conditions or remand in custody.
Revision Tip
Always distinguish carefully between a defendant’s failure to attend court (absconding) and a mere breach of conditions. Only absconding is a criminal offence; breach is not, but both have important consequences for ongoing bail status and client advice.
Key Point Checklist
This article has covered the following key knowledge points:
- The main statutory basis for bail and the strong presumption in favour of granting bail to unconvicted defendants.
- Key exceptions permitting bail to be refused (risk of absconding, further offences, or interference).
- The range and justification for imposing bail conditions, and common examples of such conditions.
- The process and advocacy for making and contesting bail applications in court.
- The difference between absconding (a criminal offence) and breaches of bail conditions (not an offence, but justifies arrest and review).
- The rules and limitations for repeat bail applications and appeals.
- How to approach further applications and appeal procedures following a refusal of bail.
Key Terms and Concepts
- Bail
- Presumption in Favour of Bail
- Conditional Bail
- Certificate of Full Argument
- Absconding
- Breach of Bail Conditions