Procedures and processes in criminal litigation - Bail appli...

Learning Outcomes

This article explains bail applications in criminal litigation, including:

• The statutory presumption in favour of bail and circumstances where it does not apply
• Schedule 1 exceptions to bail for imprisonable and non-imprisonable offences, and the domestic abuse-focused provision
• The “no real prospect of custody” restriction on remanding adult, unconvicted defendants
• Statutory risk factors and how they inform opposition to and argument for bail
• Conditional bail: purpose, common conditions, tailoring, proportionality, and surety versus security
• The procedure and advocacy at bail hearings, prosecution disclosure, and the certificate of full argument
• Further applications, variation of conditions, and defence and prosecution appeal routes and timelines
• Special regimes for murder and specified serious offences and the Crown Court’s role
• The distinction between absconding and breach of conditions and their respective consequences
• The effect of custody time limits on remand decisions and mandatory release on bail if they expire

SQE2 Syllabus

For SQE2, you are required to understand the law and procedure relating to bail applications, with a focus on the following syllabus points:

• 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.

1. List three main statutory exceptions to the general right to bail for an adult charged with an imprisonable offence.
2. Give two examples of bail conditions commonly imposed to address a perceived risk of absconding.
3. What is the difference in law between "absconding" and "breaching bail conditions", and what are the respective consequences?
4. 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.

A bail decision is a type of remand decision. Whenever a case is adjourned (for example, for trial, case management, or pre-sentence reports), the court must decide whether to remand the defendant in custody or on bail.

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").

Key Term: Remand
A remand is the court’s decision on what happens to a defendant during an adjournment: either remand in custody or remand on bail (with or without conditions) until the next hearing.

Custody time limits are also relevant. Where a defendant is remanded in custody, strict statutory time limits apply to ensure expedition. If a custody time limit expires without extension, the defendant must be released on bail.

Key Term: Custody Time Limit
The maximum period a defendant may be held in custody pending trial at a given stage. Typical limits include 56 days from first appearance to trial for summary-only offences, 70 days from first appearance to trial for either-way offences in the magistrates’ court (reduced to 56 days if allocation occurs within 56 days), 70 days from first appearance to sending for cases sent to the Crown Court, and 182 days from first appearance to arraignment for indictable-only offences. Extensions require the prosecution to show good and sufficient cause and due diligence.

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 section 4 of the Bail Act 1976. The presumption also applies after conviction where the case is adjourned for pre-sentence reports and in breach proceedings for community orders. 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. This is consistent with the protection of liberty under Article 5 of the ECHR and the principle that pre-trial detention is exceptional.

Key Term: Presumption in Favour of Bail
The default rule that an unconvicted defendant should be released unless specific, statutory reasons justify refusal.

Key Term: Unconditional Bail
Release on bail with the single obligation to surrender to court at the time and place stated, without further conditions.

The presumption does not apply in two common situations: where a defendant is committed to the Crown Court for sentence and where a defendant appeals against conviction or sentence (including case stated). In those situations bail is discretionary with no presumption.

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 (indictable-only or either-way), a summary non-imprisonable offence, or is already convicted awaiting sentence. The court applies these exceptions by reference to statutory factors in the same Schedule.

A preliminary restriction applies to the main exceptions for adult, unconvicted defendants. If the defendant is 18 or over, has not yet been convicted in the proceedings, and there is no real prospect of a custodial sentence on conviction, the court has no power to remand in custody under the principal exceptions in paras 2, 2A and 6 of Schedule 1. In other words, where a custodial sentence is not a realistic outcome, the presumption prevails and bail must be granted (unconditionally unless conditions are necessary for other permitted purposes).

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.

This is the principal ground of opposition to bail and carries a high threshold: substantial grounds for believing the risk will materialise, not merely that it might.

The court must also consider a domestic abuse–focused exception: if there are substantial grounds for believing the defendant would commit an offence while on bail by engaging in conduct causing, or likely to cause, physical or mental injury, or fear of such injury, to an associated person.

Key Term: Associated Person
Includes a spouse or former spouse, civil partner or former civil partner, cohabitant, former cohabitant, a person with whom the defendant has or had an intimate personal relationship, a parent, child, or a person with parental responsibility.

Other exceptions allowing refusal of bail include where:

• the offence appears to have been committed while the defendant was on bail
• the defendant should be kept in custody for their own protection (or, for a child or young person, for welfare)
• the defendant is already serving a custodial sentence
• the defendant has been arrested under section 7 of the Bail Act 1976 for failing to surrender or for breaking bail conditions
• it has not been practicable to obtain sufficient information to make a bail decision because of the shortness of time since proceedings began, or further enquiries/reports cannot be completed if the defendant is on bail.

These exceptions apply across indictable imprisonable offences, with separate lists for summary imprisonable and non-imprisonable offences. For non-imprisonable offences, the circumstances justifying custody are very limited (for example, where there is a previous conviction and substantial grounds for a listed risk, own protection, serving a sentence, or arrest for absconding with further substantial grounds).

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").

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 specified serious offences (including murder, attempted murder, manslaughter, rape, attempted rape and certain serious sexual offences), bail may only be granted in exceptional circumstances if there is a relevant previous conviction for the same specified list. For murder specifically, bail may only be granted by a Crown Court judge, and the judge must be of the opinion that there is no significant risk that the defendant would commit, while on bail, an offence likely to cause physical or mental injury to any person.

In practice, when a defendant is charged with murder, the magistrates must send the case to the Crown Court forthwith. A Crown Court judge must determine the bail application as soon as reasonably practicable and within 48 hours of the magistrates’ decision, excluding weekends and public holidays.

When deciding whether an exception applies, the court must consider the statutory factors in Schedule 1:

• the nature and seriousness of the offence and the probable method of disposal if convicted
• the defendant’s character, antecedents, associations and community ties
• the defendant’s record on previous grants of bail
• the strength of the evidence (except where already convicted)
• any risk of physical or mental harm to any person if the defendant is released.

The more serious the offence and the greater the likely sentence, the stronger the incentive to abscond. Conversely, strong community ties, stable accommodation, employment, and a good bail record weigh in favour of granting bail.

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.

Worked Example 1.2

An adult defendant is charged with low-value shop theft, has no convictions, and the Sentencing Council guidelines indicate that, if convicted, a fine or conditional discharge is likely. Can the magistrates remand in custody because the defendant has no fixed address?

Answer:
No. For an adult, unconvicted defendant, if there is no real prospect of a custodial sentence, the main exceptions in Schedule 1 cannot be used to justify custody. The defendant must be granted bail (unconditional unless conditions are necessary for other permitted purposes). Lack of a fixed address may justify a residence condition, but not custody on its own.

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 and must be clear, realistic, and enforceable in practice. The court should opt for the least restrictive measures sufficient to manage the risk.

Common bail conditions include:

• residence at a stated address (including a bail hostel where appropriate)
• reporting to a police station at set times
• a curfew (which may be monitored by electronic tagging where available)
• non-association or non-communication with named individuals (e.g. witnesses or co-defendants), “directly or indirectly”
• exclusion from a specified area or premises
• surrender of passport and/or prohibition on applying for travel documents
• surety or financial security (a promise by a suitable person to forfeit a sum if the defendant absconds, or a deposit paid before release)
• requirements to attend appointments (e.g. with probation for pre-sentence enquiries).

Surety and security serve different purposes. A surety undertakes to forfeit a recognizance if the defendant fails to surrender; the court will examine the surety’s means, character, and relationship to the defendant to ensure influence and capacity. Security requires money to be paid into court in cleared funds before release, which is forfeited on failure to surrender.

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.

Conditions may only be imposed where it appears necessary to:

• ensure surrender to custody
• prevent the commission of offences on bail
• prevent interference with witnesses or obstruction of justice
• protect the defendant’s own safety or welfare (for children/young persons)
• ensure availability for enquiries or reports (e.g. pre-sentence).

Conditions should be tailored to the stated objection(s). For example, a robust reporting requirement and surety/surrender of passport address absconding risk; an exclusion zone and non-contact condition address interference risk; a curfew and residence away from the alleged hotspot address reoffending.

Bail conditions can be varied. Either party may apply to vary conditions in the magistrates’ court under the Magistrates’ Courts Act 1980 and the Criminal Procedure Rules. A defendant can also ask the custody officer (if police bail conditions) to reconsider. Variation requires a change in circumstances or fresh information demonstrating that risk can now be managed differently.

Worked Example 1.3

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.

Worked Example 1.4

D is charged with witness intimidation. The prosecution fears interference with witnesses. D proposes unconditional bail. How might the defence construct a viable conditional bail package?

Answer:
Propose a combination of non-contact conditions with named witnesses “directly or indirectly,” an exclusion zone around their homes/workplaces, residence at an address away from the witnesses, electronic monitoring (if available), and daily reporting. If appropriate, offer a surety from a close relative with verified means. Each measure addresses the specific interference risk.

Procedure at a Bail Application

Applications for bail are usually made at the first court hearing. If the defendant was denied police bail after charge, they must be brought before the magistrates as soon as practicable and in any event at the next court sitting. The hearing is inquisitorial in nature; the strict rules of evidence do not apply, but fairness and relevance do.

The prosecution will explain the facts, the objections to bail, and present any relevant information (such as previous convictions, bail history, alleged offences on bail, or any intelligence indicating risks). Under the Criminal Procedure Rules, the prosecution must, as soon as practicable, provide the defence and the court with all material in its possession relevant to the bail decision, specify each exception relied on, identify relevant statutory factors, and, if proposing conditions, explain how each condition addresses the risk.

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 defence can call evidence in support (for example, a proposed surety to give evidence of means and relationship, or an employer confirming a job offer). The court may ask questions to test the practicality and enforceability of any proposed conditions.

The court expects advocates to present arguments clearly, respond to opposing submissions, and ensure the proposal of realistic and practical conditions. If bail is granted subject to a surety, the surety will be sworn and examined on oath. If bail is refused, reasons must be stated and recorded.

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.

Worked Example 1.5

At a contested hearing, the prosecutor objects to bail citing risk of absconding and proposes reporting as a condition if bail is granted. The defence says D has a stable job and offers residence at a fixed address two miles away. What should the defence add procedurally and substantively?

Answer:
Procedurally, the defence should respond to each objection in turn, propose targeted conditions (e.g. reporting, surrender of passport) and, if needed, call short evidence (e.g. employer letter, proof of address). Substantively, address the statutory factors: community ties (employment, residence), good bail record, and any weaknesses in the evidence, to show that conditions can adequately manage the risk.

Further Applications and Bail Appeals

If bail is refused, the magistrates must consider the question of bail at each subsequent hearing while the defendant remains in custody and the presumption applies. However, only the first hearing after a refusal permits a further full application using any arguments, even if already used. At later hearings, a full application requires a change in circumstances or fresh information (for example, a new bail address, a prospective surety, a job offer, service of material weakening the prosecution case, or a shift in likely sentence affecting the “real prospect of custody” assessment).

If bail is refused, the defendant may appeal to the Crown Court. The application is made in writing as soon as practicable, served on the Crown Court, magistrates’ court and prosecution, and must attach the certificate of full argument. The Crown Court judge (usually in chambers) conducts a complete rehearing. Appeals are generally listed quickly—usually within days. The judge may grant bail (with or without conditions) or dismiss the appeal.

The prosecution may appeal a grant of bail by the magistrates where the offence is imprisonable. Oral notice must be given at the end of the hearing and before the defendant is released, followed by written notice served promptly (within the tight statutory window). The Crown Court must hear the appeal as soon as practicable and, in any event, within two business days of service. The defendant remains in custody until determination. A prosecution appeal against a Crown Court grant of bail lies to the High Court in limited circumstances.

Worked Example 1.6

Magistrates grant conditional bail in an imprisonable case over CPS objection at 4:30 pm. What must the CPS do to appeal, and what happens to D?

Answer:
The prosecutor must give oral notice of intention to appeal before D is released, then serve written notice within the prescribed period, triggering a Crown Court hearing within two business days. D will be remanded in custody pending the appeal. The Crown Court will rehear the application and may confirm or reverse the decision.

Absconding and Breaches of Bail

Failure to surrender to bail ("absconding") is a criminal offence under section 6 of the Bail Act 1976. There are two ways it can be committed: failing to surrender without reasonable cause at the appointed time and place, or having a reasonable cause for the initial failure but then failing to surrender as soon as reasonably practicable once that cause ceases. Arriving late can constitute a failure to surrender.

If a defendant absconds, the court will issue a warrant for arrest, either backed with bail (allowing police to release the defendant to attend the next hearing) or unbacked (requiring detention until court). Weekend arrangements typically mean a Saturday remand court may sit; no remand courts sit on Sundays.

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 within 24 hours. A police officer may arrest without warrant if they reasonably believe the defendant has broken, or is likely to break, any bail condition, or that the defendant is unlikely to surrender. On arrest for breach, the court conducts a two-stage process: determine whether a breach occurred, then determine whether to remand in custody or re-grant bail (with the same or varied conditions). If the “no real prospect of custody” restriction applies, the court cannot remand in custody on that basis.

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 1.7

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.

Worked Example 1.8

D missed a 10:00 am hearing due to unexpected hospital admission at 8:30 am. Discharged at 3:00 pm the same day, D attends court two days later. What is D’s liability?

Answer:
D had a reasonable cause for the initial failure but was required to surrender as soon as reasonably practicable after discharge. Attending two days later is likely too late; D risks conviction under section 6(2). Prompt surrender the same day or next morning would usually be expected.

Consequences of Breaches

Absconding carries serious consequences, including up to three months' imprisonment and/or a fine in the magistrates’ court, and up to 12 months’ imprisonment and/or an unlimited fine in the Crown Court. The court may sentence immediately or adjourn sentence to the end of the case. Sureties may also be ordered to pay, in whole or part, the amount of their recognizance (forfeit), following an inquiry into means and circumstances.

A breach of conditions is not in itself punishable by further charges, but will nearly always result in stricter conditions or remand in custody. Past breaches will also make future grants of bail more difficult.

Bail conditions—and the decision whether to remand in custody—must be kept under review at each hearing. Defendants can apply to vary conditions if circumstances change, and the court can tighten or relax conditions as risk evolves.

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.

Worked Example 1.9

A surety promised £5,000 if D failed to surrender. D absconds. What will the court do about the surety?

Answer:
The court may initiate forfeiture (estreatment) of the recognizance. The surety will be given an opportunity to show cause why forfeiture should be remitted in whole or part (for example, by evidence of efforts to secure D’s surrender). The court may enforce the full amount or remit part, depending on culpability and means.

Additional Practicalities and Special Categories

Although the focus is on court bail, it is helpful to distinguish police bail after charge from court bail. After charge, the custody officer decides whether to detain for court or release on bail (with or without conditions) applying similar risk considerations. If police bail conditions are breached or police believe a breach is likely, the police may arrest without warrant and bring the defendant before the magistrates within 24 hours for the court to reconsider bail.

Youth defendants can be remanded for their own welfare and have additional safeguarding considerations. If refused police bail after charge, they are usually remanded to local authority accommodation (with secure accommodation only in limited circumstances). The Youth Court applies the same statutory exceptions, but the court is particularly alert to welfare considerations when crafting conditions.

In all cases, advocates must be alert to custody time limits. Where a defendant is remanded in custody, the prosecution must progress the case diligently. If a custody time limit expires without extension, the defendant must be released on bail, though conditions may be imposed to manage risk.

Worked Example 1.10

D’s either-way case has been adjourned repeatedly while D is in custody. The 70-day custody time limit is about to expire and the prosecution has not applied to extend. What must happen?

Answer:
Unless the prosecution secures an extension by proving due diligence and good and sufficient cause, the court must release D on bail (with or without conditions). The case will proceed with D on bail.

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, including when the presumption does not apply.
• The “no real prospect of custody” restriction on using principal exceptions to remand adult, unconvicted defendants.
• Key exceptions permitting bail to be refused (risk of absconding, further offences, or interference), plus additional exceptions (offence on bail, own protection, impracticability, serving sentence, arrest for breach).
• Special regimes for specified serious offences and for murder (Crown Court judge only and the “no significant risk” test).
• The statutory factors guiding the court’s assessment of risk and how to deploy them in advocacy.
• The range and justification for imposing bail conditions; tailoring, proportionality, enforceability; and the distinction between surety and security.
• The process and advocacy for making and contesting bail applications in court, including disclosure obligations and the certificate of full argument.
• The rules and limitations for repeat bail applications and appeals, including defence appeals to the Crown Court and prosecution appeals against grants of bail.
• The difference between absconding (a criminal offence) and breaches of bail conditions (not an offence, but justifies arrest and review), and their consequences, including forfeiture of sureties.
• The role of custody time limits in bail decisions and the requirement to release on bail if time limits expire without extension.

Key Terms and Concepts

• Bail
• Presumption in Favour of Bail
• Unconditional Bail
• Conditional Bail
• Associated Person
• Certificate of Full Argument
• Absconding
• Breach of Bail Conditions
• Remand
• Custody Time Limit