Bail is the freedom from custody
granted to a defendant whilst awaiting the next stage in the legal procedure. Defendants
are able to be granted bail due to the presumption that everyone is innocent
until proven guilty, as stated in Section 4 of the Bail Act 1976. Under Article
5 of the European Convention of Human Rights, everyone has the right to
liberty, and as stated in Section 4 of the Bail Act 1976, everybody has a
statutory right to bail.
can be granted by either the police or by the courts. There is no right to
police bail, but the police can release a defendant on bail before charging
them, i.e. ‘pre-charge bail’. The suspect will be released from police custody
on the condition that they return to the police station on a certain date. This
is stated in Section 37 Police and Criminal Evidence Act 1984 (aka P.A.C.E.) In
a police station, the decision is made by the Custody Officer, who must be at
least a Police Sergeant. This is outlined in Section 38 of the P.A.C.E. Act 1984.
If bail is granted, then the suspect is released from custody until the next
date they attend the police station/court. The police are not authorised to
give bail on a charge of murder, as is stated in Section 114 Coroners &
Justice Act 2009 – Section 115 of the same act states that only the Crown Court
can do this.
are two main types of bail: conditional and unconditional. Under the Criminal
Justice and Public Order Act 1994, the police and the court can attach
conditions to the bail, which is known as conditional bail. Conditional bail is
where conditions and requirements are imposed upon the defendant to ensure that
he attends court and that he does not commit offences or interfere with
witnesses whilst on bail. Any requirement that is deemed necessary and
appropriate can be attached as a bail condition, but the most common are as
follows: surrendering of passport; reporting to police station; curfews;
residence restrictions; electronic tagging; sureties or bail hostels.
defendant’s passport may be surrendered if he has connections in other
countries, or if his crime had an international element. Not having a passport
will prevent the defendant from absconding abroad and continuing the crime
defendant may be required to report to the police station every day. This
allows the police to “keep an eye” on them and to ensure that the suspect
order to make conditions easier to enforce, the suspect may be electronically
tagged. They will have an electric tag around their ankle which tracks their
location and is not able to be taken off by the suspect. This device makes it
easier to track the suspect and so helps with: checking that the defendant is
at home during their curfew hours; tracking their location and ensuring that
they are not breaching any restraining conditions, such as staying away from a
witness or victim’s house; and they also help the police find the defendant if
they should abscond.
may be imposed on a defendant to prevent the repeating of crimes such as drunk
and disorderly or anti-social behaviour. The usual curfew conditions are that
the suspect must be at home between 7pm and 7am. This prevents the defendant
hanging around in gangs in the dark, or drinking alcohol outside of the home late
into the night.
condition that may be attached to bail is that the defendant stay at a bail
hostel. This is not limited to homeless people,
but can be very helpful because homeless people do not have an address. They
may be made to reside in a bail hostel so that they can be found and contacted
at a later date. This condition can only be issued by the Courts.
4 of the Criminal Justice Act 2003 has introduced ‘Street Bail’ which allows
the police to grant bail on the street at their own discretion. It is used for
very minor offences and is helpful in that the police officers are able to stay
on the streets as opposed to having to take the suspect back to the police
station. This statute means that the police are able to maintain more of a
presence on the street.
are imposed to ensure that the defendant surrenders to custody. They also
strive to ensure that the defendant will not commit further offences and that
they do not interfere with witnesses or obstruct the course of justice.
bail is when the suspect is released without any conditions attached to their
bail. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, suspects
must be granted bail if there is no realistic prospect of them receiving a
custodial sentence. If the police or the courts decide that the suspect is
unlikely to commit any further offences while on bail, they will return to
court and that they will not obstruct the course of justice; then they will be
granted unconditional bail. Unconditional bail is usually granted for minor
offences whereas more serious crimes will warrant the use of conditional bail.
However, in both conditional and unconditional bail, under Section 6 The Bail
Act 1976, the police have the right to arrest them if they do not surrender to
possible outcome may be that the defendant is remanded in custody. This is
essentially the refusal of bail but a suspect may also be remanded in custody
for their own protection. If, after having been released on bail, the suspect
refuses to surrender to police custody on a specified date, then the police
have the right to arrest them under Section 6 of Bail Act 1976. Bail may be
refused for many reasons, such as not being able to discern the suspect’s name
and address. This may be the case if the suspect can’t speak English, is
intoxicated, or is homeless and so does not have an address. Bail will also be
refused if the police doubt that the details provided are genuine.
the court is deciding whether to grant bail, they will also consider whether
the suspect will fail to surrender to police custody, i.e. abscond. They will
refuse bail if there are substantial grounds to believe that the defendant will
commit an offence whilst on bail, or if the defendant will interfere with
witnesses or otherwise obstruct the course of justice. If the suspect would be
in danger, or would pose a threat to the public, they will not be granted bail.
Schedule 1, paragraph 9 of The Bail Act 1976, the police and the courts must
take the following into consideration when deciding whether to grant bail:
nature and serious of the offence – if the crime is very minor, then the defendant
is unlikely to be prosecuted and so must be granted bail. The defendant’s
character, antecedents, associations and community ties also must be considered
because these factors can be helpful in predicting the defendant’s behaviour
whilst released on bail. If it exists, the defendant’s previous bail record
must be considered because it will indicate how the defendant has behaved when
granted bail in the past. Moreover, the strength of the evidence must be
considered because the defendant must be released on bail if they are not
likely to receive a custodial sentence as ruled in the Legal Aid, Sentencing
and Punishment of Offenders Act 2012. The Custody Officer or the courts will
also consider any other relevant factor that may affect their decision in
whether to grant bail.
useful techniques to ensure a defendant’s attendance in court are sureties and
securities. They are used for serious offences and are financial assurances
paid to the court by a third party – usually a member of the defendant’s
family. Securities are when the third party pays money into court to allow the
defendant to be allowed out on bail. Sureties are payments promised to the
court and are only paid to the court if the defendant absconds.
In conclusion, the decision to grant
bail can either be made by the Custody Officer at the police station, or in the
courts. They will need to consider any factors that will predict the
defendant’s behaviour whilst released. In order to ensure that a defendant
surrenders to custody and does not commit further offences, they may impose
conditions upon the suspect. If the defendant should not be released either for
their own safety or because they are not satisfied that they will not surrender
to custody or will commit further offences, then they will be remanded in