Bail

From CrimeLine from Andrew Keogh

Guideline for Sentencing Bail Act Offences SGC Guideline on Bail Act offences - in force for those sentenced on or after 10th December 2007.

Police and Justice Act 2006: Street bail

Statutory Instrument 2007 No. 709 (in force on 31st March 2007) by paragraph 3(i) of this order Section 10 and Schedule 6 amended the Police and Criminal Evidence Act 1984 (PACE). As PACE stood, a police officer could only attach conditions to bail if the person bailed had been charged, or if his case had been referred to the CPS for a decision on whether or not to charge him. The effect of the amendments made by section 10 and Schedule 6 is that a police officer may attach conditions to bail granted at a police station before charge under section 37(2) and 37(7)(b) of PACE, and to bail granted elsewhere than at a police station ("street bail") under section 30A.

Section 10 and Schedule 6 will enable the officer granting bail to consider attaching conditions relevant and proportionate to the suspect and the offence. The conditions that can be imposed must be necessary to secure that the person surrenders to custody, that the person does not commit an offence while on bail, or that the person does not interfere with witnesses or otherwise obstruct the course of justice. Where the person is under the age of 17 conditions may also be applied for their welfare, or in their own interest. No recognizance, security or surety may be taken and no requirement to reside in a bail hostel may be imposed.

Where conditions are applied to street bail, the person who has been bailed subject to conditions will have the right to apply for variation of conditions to a custody officer and to a magistrates' court. A record will be made of the exercise of the power and a copy provided to the person explaining their rights.

The proposed measures reflect bail provisions already available in relation to people at the charging stage of the process.

Home Office Circular 061/2003: BAIL ELSEWHERE THAN AT A POLICE STATION

Street bail: Home Office guidance

Specimen: “Notice of Street Bail”

The Police and Criminal Evidence Act as amended by PART 2 of Schedule 6 Police and Justice Act 2006: police bail granted elsewhere than at police station: Power to impose conditions on granting bail.

Criminal Justice Act 2003: Bail elsewhere than at a police station

Section 4 amends section 30 of PACE to enable police officers to grant bail to persons following their arrest without the need to take them to a police station. It provides the police with additional flexibility following arrest and the scope to remain on patrol where there is no immediate need to deal with the person concerned at the station. It is intended to allow the police to plan their work more effectively by giving them new discretion to decide exactly when and where an arrested person should attend at a police station for interview.

Subsections (2) to (6) amend section 30 to take account of the new power to grant bail. The basic principle remains that a person arrested by a constable or taken into custody by a constable after being arrested by someone else must be taken by a constable to a police station as soon as practicable. However, this is subject to the provisions dealing with release either on bail or without bail.

Subsection (4) expands existing section 30(7) of PACE to provide that a constable must release the person concerned without bail if, before reaching the police station, he is satisfied that there are no grounds for keeping him under arrest or releasing him on bail under the new provisions.

Subsection (5) replaces existing sections 30(10) and (11) of PACE to make it clear that a constable may delay taking an arrested person to a police station or releasing him on bail if that person's presence elsewhere is necessary for immediate investigative purposes. The reason for such delay must be recorded either on arrival at the police station or when the person is released on bail.

Subsection (6) adapts some existing exclusions in section 30(12) of PACE to take account of the new arrangements for granting bail.

Subsection (7) inserts a series of new sections into PACE which provide police officers with the framework of powers to grant bail following arrest. Section 30A provides that a constable has power to release a person on bail at any time prior to arrival at a police station. It specifies that the person released on bail must be required to attend a police station and that any police station may be specified for that purpose. No other requirement may be imposed on the person as a condition of bail.

Section 30B requires that the constable must give the person bailed a written notice, prior to release, setting out the offence for which he was arrested and the ground on which that arrest was made. It must tell him that he is required to attend a police station and may specify the relevant station and time. If these details are not specified in that initial notice, they must be set out in a further notice provided to the person at a later stage. Police have the capacity to change the specified station or time if necessary and the person concerned must be given written notice of any such change.

Section 30C contains various supplemental provisions. Section 30C(1) allows for the police to remove a requirement to attend a police station to answer bail, provided they give the person a written notice to that effect.

Section 30C(2) makes it clear that where someone attends a non-designated police station to answer bail following arrest he must be released or taken to a designated police station within 6 hours of his arrival. Designated stations are those nominated by chief officers as suitable for detention purposes and are generally stations with appropriate facilities to cater for extended periods of custody.

Section 30C(3) specifies that nothing in the Bail Act 1976 applies in relation to bail under these new arrangements. The law which applies to this form of bail is set out in PACE as amended by the Act.

Section 30C(4) clarifies that a person who has been released under the new bail provisions may be rearrested if new evidence justifying that has come to light since their release.

Section 30D deals with failure to answer to bail under the new arrangements. Section 30D(1) allows a constable to arrest without a warrant a person who fails to attend the police station at the specified time. Section 30D(2) states that a person arrested in such circumstances must be taken to a police station as soon as practicable after the arrest. Section 30D(3) defines the station relevant for the purposes of subsection (1) as whichever station is defined in the latest notice provided to the person concerned. Section 30D(4) clarifies that such an arrest for failure to answer to bail is to be treated as an arrest for an offence for certain PACE purposes.

Police: bail with or without conditions

The Police and Justice Act 2006 (Commencement No. 2, Transitional and Saving Provisions) Order 2007. By paragraph 3(i) section 10 (police bail) and Schedule 6 are brought in to force by this order, the right to impose bail conditions under section 37(2) and 37(7)(b) of PACE, and to bail granted elsewhere than at a police station ("street bail") under section 30A.

Before the above order came into force on 31st March amendments to section 37 PACE allowed pre-charge bail, with or without conditions, to be imposed where cases are referred to Crown Prosecutors for charging decisions and it is appropriate to release the person on bail, refer to DPP's guidance to custody sergeants. A person may only be released on conditional bail before charge for the purpose of enabling a prosecutor to make a charging decision. Conditional bail before charge is not permitted when a person is bailed pending further investigation under section 34(5) PACE.

Where there are substantial grounds for believing that the exceptions to bail in the Bail Act 1976 are met, Crown Prosecutors will apply a Threshold test to the evidence in such cases for a limited period, refer to The Threshold Test in the Code for Crown Prosecutors.

Note that police powers to impose conditions are not identical to court powers to impose conditions. Specifically, police may not impose a condition to reside at a bail hostel, to attend an interview with a legal adviser, nor require the suspect to make him or herself available for inquiries and reports.

Offence of absconding

Failing to surrender to bail is an offence contrary to sections 6(1) and 6(2) of the Bail Act 1976

Section 6 of the Bail Act 1976 states: (1) If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody he shall be guilty of an offence; and (2) If a person who:

(a) has been released on bail in criminal proceedings, and

(b) having reasonable cause therefore, has failed to surrender to custody, fails to surrender to custody at the appointed place as soon after the appointed time as is reasonably practicable, he shall be guilty of an offence.”

An offence under subsection (1) or (2) is punishable either on summary conviction or, in the Crown Court, as if it were a criminal contempt of court. The maximum sentence in a magistrates’ court is 3 months imprisonment.

If the matter is committed to the Crown Court for sentence, or dealt with as for contempt of court, the maximum sentence is 12 months’ custody. In respect of contempt of court procedures, the sentence is subject to the usual appellate procedures under Section 13 Administration of Justice Act 1960

While the statutory charging scheme passes the responsibility for determining the charge to prosecutors, the police may nevertheless determine the charge in certain cases, including an offence of absconding contrary to section 6(1) or 6(2) of the Bail Act (para 6(ii) of DPP Charging Guidance 21.5.04) Charging by the police

The amended Consolidated Criminal Practice Direction states (at paragraph 1.13.5) that "the sentence for the breach of bail should usually be custodial and consecutive to any other custodial sentence". The Consolidated Criminal Practice Direction

R (Evans) v Chester Magistrates' Court [2004] EWHC 536 (Admin);
Neve [1989] 8 Cr App R (S) 270;
McMullen [1998] EWCA Crim 2221; and
White and McKinnon [2002] EWCA Crim 2952
CPS: Absconding

Sentencing for bail act offences

Failure to surrender bail Sentencing for bail act offences The panel’s advice to the sentencing guidelines council

Breach of conditions

The power of arrest for breach of conditions imposed on pre-charge bail is in Criminal Justice Act 2003 para 5 of Schedule 2 which inserts (1A) into s 46A. Section 37C applies where a person is (re-)arrested under s 46A as described in s 37C(1). Section 37C(2)(b) gives power to release (again), "without charge, either on bail or without bail". Section 37C(4) states explicitly that if the person is released on bail under s 37C(2)(b) then it shall be subject to whatever conditions applied before the s 46A arrest. (It appears that there is no power to change the conditions at this point.)

If Custody Officers are in doubt as to whether conditions attached to bail will be sufficient to avert the risk of absconding etc, they will discuss the question with the Duty Prosecutor to establish whether there is sufficient evidence to charge with a view to seeking a remand in custody.

Conditions imposed by an officer may be varied by the Magistrates' Court on application by the suspect (section 47(1E) PACE). The magistrates can confirm the same conditions, impose different conditions, or direct that bail shall be unconditional. It continues to be police bail.

The Criminal Procedure (Amendment) Rules 2007

Explanatory memorandum to the criminal procedure (amendment) rules 2007 no. 699 (l.3) 7.11 The rules about custody and bail in Part 19 of the Criminal Procedure Rules 2005 are amended by rules 10 - 15 of these Amendment Rules to take account of applications under section 47(1E) of the Police and Criminal Evidence Act 1984 for variation of bail conditions imposed by the police before a defendant is charged, and to make some minor consequential amendments.

See also: Criminal procedure rules for futher information

A Custody Officer (serving at the same station) may only vary pre charge bail conditions on application of the person bailed (section 3A Bail Act 1976). Where the Custody Officer declines to do so an application may be made to a magistrates court (section 47 (1E) PACE) inserted by section 28 of, and
paragraphs 1 and 6 of Schedule 2 to, the Criminal Justice Act 2003

Restriction on bail for drug users

List of police stations where drug testing under section 7 of the Drugs Act 2005 Police force areas, BCUs and custody suites: Implementation of provisions for adult drug testing on charge, on arrest and for the initial assessment.

Section 19: Drug users: restriction on bail

Section 19 Evidence suggests that there is a link between drug addiction and offending. In addition, it is widely accepted that many abusers of drugs fund their misuse through acquisitive crime. There is thus a real concern that if such offenders who have been charged with an imprisonable offence are placed on bail, they will merely re-offend in order to fund their drug use.

Section 20 makes supplementary amendments to the Bail Act 1976. See above for furhter details.

Drugs Act 2005

Section 17: Relationship with the Bail Act 1976 etc.

This section in subsection (1) provides that a requirement to attend either an initial assessment or a follow-up assessment ceases to have effect if, before he has complied with the requirement in question, the person is charged with an offence which satisfied the arrest or charge condition in relation to the drug test (the related offence) and is granted bail in respect of that offence by a court on the condition that he undergo a relevant assessment and/or participate in follow-up under the Bail Act 1976.

Subsection (2) provides that a relevant assessment for the purposes of the Bail Act 1976 is to be treated as having been carried out where a person attends for the duration of an initial assessment and the initial assessor is satisfied that the assessment fulfilled the purposes of the relevant assessment.

Subsection (3) further provides that a person will be considered to have undergone such a relevant assessment in those circumstances.

Subsection (4) provides that an initial assessor may disclose information regarding the initial assessment to enable a court to determine whether those circumstances arise.

The Drugs Act 2005 (Commencement No. 5) Order 2007 In force 1 April 2007

Court bail

Criminal Justice and Immigration Act 2008

Section 52 and Schedule 12: Bail for summary offences and certain other offences to be tried summarily

Section 52 and Schedule 12 amend the 1976 Act to restrict the grounds on which a person charged with an imprisonable summary offence or a relevant low-level criminal damage offence may be refused bail.

Schedule 1 to the 1976 Act sets out the grounds on which a court may refuse bail in criminal proceedings (the "exceptions to the right to bail"): Part 1 of Schedule 1 currently applies where a defendant is accused or convicted of an imprisonable offence; Part 2 applies to non-imprisonable offences and has a more restricted list of exceptions than Part 1. Schedule 12 will disapply Part 1 for certain defendants, and instead insert and apply a new Part 1A. New Part 1A will include the four exceptions to the right to bail that are in Part 2 as well as four further exceptions, two of which derive from Part 1.

Paragraph 2 of Schedule 12 amends section 3(6D)(a) of the 1976 Act so that the conditions of bail specified in that provision (which apply to persons for whom there is drug test evidence of a Class A drug and who are required to undergo a relevant assessment or participate in a follow-up) will still apply to defendants within new Part 1A. (Section 3(6D) was inserted by section 19 Criminal Justice Act 2003).

Paragraphs 3 to 5 of Schedule 12 insert a new section 9A into the 1976 Act and amend Part 1 of Schedule 1 to prescribe which defendants will fall within new Part 1A, which is inserted by paragraph 6. Part 1A will apply to a defendant charged with imprisonable offences that are –

(a) summary offences, or

(b) offences listed in Schedule 2 to the Magistrates' Courts Act 1980 (certain offences involving criminal damage), where the value involved is less than the relevant sum (currently £5000).

For offences listed in Schedule 2 to the Magistrates' Courts Act 1980 (criminal damage, related offences, and certain forms of aggravated vehicle-taking), a defendant over 18 will fall within new Part 1A if, under the procedure in section 22 of the Magistrates' Courts Act 1980 (for determining mode of trial), the court has decided it is clear that the value involved does not exceed £5000. New section 9A provides for a court to take the same decision in relation to defendants under 18, for the purposes of applying the 1976 Act.

Paragraph 1 of new Part 1A establishes which defendants fall within the new Part, and paragraphs 2 to 9 prescribe eight exceptions to the right to bail. Where an exception applies, the court need not grant bail to the defendant, but still has a discretion to do so which will be exercised having regard to all the circumstances of the case. The exceptions are as follows:

(a) Paragraph 2 applies if, having been granted bail previously, the defendant has failed to surrender to custody and the court believes that, if released on bail, he would do so again.

(b) Paragraph 3 applies if the defendant was on bail in criminal proceedings on the date of the offence and the court believes that, if released, he would commit an offence on bail.

(c) Paragraph 4 applies if there are substantial grounds to believe that, if released on bail, the defendant would commit an offence by engaging in conduct that would be likely to cause physical or mental injury, or fear of such injury.

(d) Paragraph 5 applies if the court is satisfied the defendant should be kept in custody for his own protection or, if a child or young person, for his own welfare.

(e) Paragraph 6 applies if the defendant is in custody under the sentence of a court or officer under the Armed Forces Act 2006.

(f) Paragraph 7 applies if, having been released on bail in proceedings for the same offence, the defendant was arrested under section 7 of the Bail Act (liability to arrest for absconding or breaking conditions of bail) and the court believes that, if released, he would:

fail to surrender to custody;
commit an offence while on bail,
interfere with witnesses or
otherwise obstruct the course of justice.

(g) Paragraph 8 applies if it has not been practicable to obtain enough information to take decisions required by Part 1A due to lack of time since the proceedings began.

(h) Paragraph 9 applies paragraphs 6A to 6C of Part 1 (exception applicable to drug users in certain areas) to defendants falling within Part 1A.

Criminal Justice Act 2003 PART 2: BAIL

Section 13: Grant and conditions of bail

Section 13 Subsection (1) makes a number of changes to section 3(6) of the Bail Act 1976 to enable bail conditions to be imposed for a defendant's own protection or welfare, in the same circumstances that he or she might have been remanded in custody for that purpose.

Subsection (2) makes similar changes to section 3A(5), and subsection (3) to paragraph 8(1) of Part 1 of Schedule 1 to the 1976 Act.

Subsection (4) amends paragraph 5 of Part 2 of Schedule 1 to the Bail Act 1976 so that, where a defendant charged with a non-imprisonable offence is arrested under section 7, bail may be refused only if the court is satisfied that there are substantial grounds for believing that if released on bail (whether subject to conditions or not) he or she would fail to surrender to custody, commit an offence whilst on bail, or interfere with witnesses or otherwise obstruct the course of justice.

Section 14: Offences committed on bail

Section 14 and Section 15(1) and (2) Criminal Justice Act 2003. (Commencement No.14 and Transitional Provision)Order 2006 partially In force 1 January 2007.

Click here for CrimeLine presentation on changes. NB: Part 1 of Schedule 1 to the Bail Act 1976 apply where the defendant is liable on conviction to a sentence of imprisonment for life, detention during Her Majesty's pleasure or custody for life. Section 15(3) is in force.

Section 14 Subsection (1) requires the court to refuse bail to an adult defendant who was on bail in criminal proceedings at the date of the offence, unless the court is satisfied that there is no significant risk that he would commit an offence if released on bail. This replaces paragraph 2A of Part I of Schedule 1 of the Bail Act 1976 (which provides that a defendant need not be granted bail if he was on bail at the time of the alleged offence). This means if the accused was on bail for murder, then committed a theft, the provisions would not apply. If it was the other way around they would.

Subsection (2) adds a new paragraph 9AA to Part 1 of Schedule 1 to the Bail Act 1976, which provides that where a defendant under the age of 18 is on bail in criminal proceedings on the date an offence was committed particular weight can be given to this fact when the court is deciding whether he or she would be likely to re-offend if released on bail.

Section 15: Absconding by persons released on bail

Section 15 Subsection (1) requires the court to refuse bail to an adult defendant who failed without reasonable cause to surrender to custody in answer to bail in the same proceedings, unless the court is satisfied that there is no significant risk that he would so fail if released.

Subsection (2) requires the court, in the case of defendants under 18, to give particular weight to the fact that they have failed to surrender to bail, in assessing the risk of future absconding.

Subsection (3) disapplies section 127 of the Magistrates' Court Act 1980 (which prevents summary proceedings from being instituted more than 6 months after the commission of an offence) in respect of offences under section 6 of the Bail Act, and instead provides that such an offence may not be tried unless an information is laid either within 6 months of the commission of the offence, or within three months of the defendant's surrender to custody, arrest or court appearance in respect of that offence. This will ensure that a defendant cannot escape being prosecuted for the Bail Act offence merely by succeeding in absconding for more than six months.

Section 16: Appeal to Crown Court

Section 16 creates a new right of appeal to the Crown Court against the imposition by magistrates of certain conditions of bail. The conditions which may be challenged in this way are requirements relating to residence, provision of a surety or giving a security, curfew, electronic monitoring or contact. This complements the removal by Section 17 of the existing High Court power to entertain such appeals.

Section 17: Appeals to the High Court

Section 17 abolishes the jurisdiction of the High Court in respect of bail where it duplicates that of the Crown Court.

Section 18: Appeal by prosecution

Section 18 amends section 1 of the Bail (Amendment) Act 1993 so that the prosecution's right of appeal to the Crown Court against a decision by magistrates to grant bail is extended to cover all imprisonable offences.

Section 19: Drug users: restriction on bail

Section 19 amends the Bail Act 1976 to create a qualified restriction on court bail. The provision applies, in certain circumstances, to adults charged with an imprisonable offence, who have tested positive for a specified Class A drug (heroin, crack/cocaine), and who refuse to be assessed as to their dependency upon or propensity to misuse specified Class A drugs, or having undergone such an assessment, refuse to participate in relevant follow up-action recommended. This provision is only available where the court has been separately notified by the Secretary of State that it is available to them. It is to be piloted in three court areas (Manchester, Salford and Nottingham) from the beginning of May 2004. The purpose of the provision is to reduce re-offending whilst on bail. Further guidance relating to this measure is available in Home Office circular 022/2004

19 Evidence suggests that there is a link between drug addiction and offending. In addition, it is widely accepted that many abusers of drugs fund their misuse through acquisitive crime. There is thus a real concern that if such offenders who have been charged with an imprisonable offence are placed on bail, they will merely re-offend in order to fund their drug use.

Under this Section, an alleged offender aged 18 or over who has been charged with an imprisonable offence will not be granted bail (unless the court is satisfied that there is no significant risk of his committing an offence while on bail), where the three conditions below exist:

(i) there is drug test evidence that the person has a specified Class A drug in his body (by way of a lawful test obtained under section 63B of the Police and Criminal Evidence Act 1984 or Section 161 of this Act);
(ii) either the offence is a drugs offence associated with a specified Class A drug or the court is satisfied that there are substantial grounds for believing that the misuse of a specified Class A drug caused or contributed to that offence or provided its motivation; and
(iii) the person does not agree to undergo an assessment as to his dependency upon or propensity to misuse specified Class A drugs or, has undergone such an assessment but does not agree to participate in any relevant follow-up offered.

The assessment will be carried out by a suitably qualified person, who will have received training in the assessment of drug problems. If an assessment or follow-up is proposed and agreed to, it will be a condition of bail that they be undertaken. The provision can only apply in areas where appropriate assessment and treatment facilities are in place.

Section 20: Supplementary amendments to the Bail Act 1976

Section 20 makes supplementary amendments to the Bail Act 1976.

Section 21: Interpretation of Part 2

Section 21 defines various terms used in this Part of the Act.

Criminal Justice and Public Order Act 1994

Criminal Justice an Public Order Act 1994
Section 24 Detention of arrested juveniles after charge.
Section 25 No bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences.
Section 26 No right to bail for persons accused or convicted of committing offence while on bail.
Section 27 Power for police to grant conditional bail to persons charged.
Section 28 Police detention after charge.
Section 29 Power for police to arrest for failure to answer to police bail.
Section 30 Reconsideration of decisions granting bail.
Schedule 3 Bail: Supplementary Provisions.

Asylum and Immigration (Treatment of Claimants, etc.) Act 2004

Section 32: Suspected international terrorist: bail

Section 32 creates a right of appeal on a point of law to the Court of Appeal (in Scotland, the Court of Session, or in Northern Ireland, the Court of Appeal in Northern Ireland) where the Special Immigration Appeals Commission has made a determination in respect of an application for bail by someone who has been certified as a suspected international terrorist under Part 4 of the Anti-terrorism, Crime and Security Act 2001.

Judge in chambers bail applications

Malik v Central Criminal Court & Anor [2006] EWHC 1539 (Admin) (27 June 2006)

This was an for judicial review of the decision of the Common Serjeant of London, sitting at the Central Criminal Court, made, whereby he refused the Claimant's application to have his application for bail heard in public.

There is a ‘fundamental presumption in favour of open justice’ for an application for bail to be heard in public, so ruled the Court at para 40.

The Court gave as a good reason for the court to sit in chambers for a bail application was for those cases in which the delay involved in arranging a public hearing would defeat the purpose of the application. See: para 31.

The Court gave examples where applications for bail may in the interests of the accused have to be heard in private: where the prosecution need to rehearse a damaging case against the defendant or his co-accused; where the prosecution intend to give detailed reasons for fearing that the defendant will not surrender if given bail; where the defendant's previous convictions will be referred to; where it will or may be necessary to reveal personal and confidential information about the defendant or about prosecution witnesses or others; and where the court may need to be told about information which has been provided to the prosecuting authorities by the defendant or by someone else connected with the case. See: para 33.

In other cases, by contrast, a public hearing will not only meet the primary requirement of open justice. It will serve as a discipline upon parties who are tempted to make exaggerated or unfounded assertions in seeking or opposing bail if they face the possibility of having to answer at trial for what they have chosen publicly to assert. See: para 34.

We recognise that this judgment may affect the day-to-day administration and practice of many Crown Courts. We would therefore make certain consequential things clear. It does not follow from what we have held that bail applications have to be listed and called on in open court and then adjourned to chambers if, and only if, a case is made for doing so. Such a process, as well as being time-consuming, would as often as not be self-defeating. There will be nothing objectionable in listing bail applications on the provisional assumption that the interests of justice are going to call for a closed hearing, so long as any application to sit in public is approached on the footing that, once made, it must be acceded to unless there is a sound reason for excluding the public. Such an application will ordinarily come from one or both of the parties, but it may also legitimately come from the media or some other third party. Whether listing is carried out on this basis or on a contrary presumption that the hearing will be in public, parties to bail applications must be prepared to respond promptly, and with relevant reasons, if the court requires to be told in advance of the hearing whether a different course is to be sought and, if it is, whether that course is to be supported or opposed. Crown Court administrators for their part may consider it wise to ask for this information when they list bail applications for hearing. Where there is a conflict, it must be resolved by a judicial decision which itself respects the principles we have set out. See: para 35.

Where the defendant has legal representation the Court stated that one can see sound pragmatic reasons why he should not have a right to be "produced".

Crime and Disorder Act 1998 (Bail)

Home Office Circular 34/1998 Bail Measures: Sections 54, 55 And 56 Of The Crime And Disorder Act 1998

Crime and Disorder Act 1998 Section 54 Bail: increased powers to require security or impose conditions.

Crime and Disorder Act 1998 Section 55 Forfeiture of recognizances

Crime and Disorder Act 1998 Section 56 Bail: restrictions in certain cases of homicide or rape

Case law

Hoskin, R v Northampton Crown Court (19 August 2009)

Hoskin, R (on the application of) v Northampton Crown Court [2009 EWHC 2265 (Admin) (19 August 2009)

F, R Southampton Crown Court (07 July 2009)

F, R (on the application of) v Southampton Crown Court [2009] EWHC 2206 (Admin) (07 July 2009) The judge remanded the claimant in custody for the purpose of reports. He delivered his ruling on the question of bail and saying: quote, "not prepared to grant bail, not sure will turn up or stay out of trouble". The correct test is that contained in the Bail Act 1976, section 4(4), applying schedule 1, and that requires the judge to have substantial grounds for believing that the defendant before him would fail to surrender, commit offences on bail, or transgress one of the other provisions in schedule 1.

Fergus, R (on the application of) v Southampton Crown Court [2008] EWHC 3273 (Admin) (04 December 2008)

Fergus, R (on the application of) v Southampton Crown Court [2008] EWHC 3273 (Admin) (04 December 2008) The defendant had enjoyed conditional bail for 4 months, and had not breached it in any way. Upon surrendering to the Crown Court and pleading not guilty at a PCMH the Judge withdrew bail having viewed the defendant's record. Held: The refusal of bail was irrational. "...it is not reasonable for a court to withdraw bail unless it is necessary to do so especially as any decision to withdraw bail engages rights under Article 5. Second, any such reason justifying the decision to withdraw bail must be stated by the decision maker explaining why bail should be withdrawn and that reason must relate to the facts. Such a reason must be more than merely reciting that one of the statutory grounds has been made out. The underlying facts have to be put forward. In this case no good reason has been put forward by the judge nor by the Crown Prosecution Service to establish one of the statutory grounds as to why bail should be refused."

R (Fergus) v Southampton Crown Court [2008] EWHC 3273 (Admin) cited in Archbold 2009 (2nd supplement) 3-19a - Judicial Review of the decision of a Crown Court judge to withdraw bail from a man who had been complying with bail conditions for months. The High Court quashed the decision on the grounds of irrationality and a failure to give reasons.

R v Scott (15 October 2007)

Scott, R. v [2007] EWCA Crim 2757 (15 October 2007) . A judge was correct to put Bail Act charges to a defendant who surrendered to bail 30 minutes late. Such a breach was not de minimis (earlier case law did not establish a de minimis principle and should be disregarded: R v Gateshead JJ’s ex parte Usher (1981) Crim LR 491). The courts should not tolerate a culture of delay, even very short periods can cause immense disruption to the criminal process. It would be a rare case, even with a very marginal delay, when a judge would be acting Wednesbury unreasonable in putting a charge – the minor delay goes to mitigation only.

Remice v HMP Belmarsh (27 March 2007)

Remice v HMP Belmarsh [2007] EWHC 936 (Admin) (27 March 2007) D was granted bail by magistrates' but the grant of bail was appealed by the prosecution. The Judge upheld the appeal but did not determine a return date to the magistrates' court within 8 days so that D could make representations against onward remand (s128A(2) MCA 1980). D applied for habeas corpus. Held: The writ would be granted and D released.

Szakal, R v Manchester Magistrates' Court (16th July, 1999)

In Szakal, R (on the application of) v Manchester Magistrates' Court [1999] EWHC Admin 702 (16th July, 1999) Simon Brown LJ said this:

"Bone decided that where the prosecution successfully appeal a grant of bail by magistrates, the Crown Court judge must stipulate a date which is in accordance with the powers of the justices under section 128, section 128A and section 129 of the Magistrates' Courts Act 1980, a period of remand in custody which does not exceed eight days from when the defendant last appeared before the Magistrates -- or possibly, this question being for future consideration, 28 days if the provisions of section 128A are followed by a Crown Court judge."

Section 130 Transfer of remand hearings Magistrates' Courts Act 1980.

Section 131 Remand of accused already in custody Magistrates' Courts Act 1980.

O V. Crown Court at Harrow UKHL (26 July 2006)

O V. Crown Court at Harrow [2006] UKHL 42 (26 July 2006) “This appeal is all about the pre-trial detention of unconvicted defendants, and in particular the right to bail of a certain category of such defendants. The category in question is that provided for by section 25 of the Criminal Justice and Public Order Act 1994 as amended, namely those charged with one of a specified number of grave offences—essentially murder, attempted murder, manslaughter, rape and attempted rape—who in addition have been previously convicted of such an offence (although not necessarily an offence of the same type).” “In summary, section 25 should be construed and applied essentially as a guide to the proper operation of the Bail Act in those cases to which it applies. Additionally in those cases it operates to disapply the ordinary requirement under the 1987 Regulations that bail be granted automatically to anyone whose custody time limit has expired. Thus applied it is compatible with article 5(3). I would dismiss the appeal.”

O, R (on the application of) v Crown Court At Harrow [2003] EWHC 868 (Admin) (16 April 2003)

Vickers, R. (11 July 2003)

Vickers, R (on the application of) v West London Magistrates' Court [2003] EWHC 1809 (Admin) (11 July 2003) MR JUSTICE GAGE: This is an application for judicial review challenging the decision of the West London Magistrates' Court made on 26 June of this year. On that date, the claimant was remanded in custody following a ruling by the clerk of the court that reasonable excuse was not a defence to an allegation of a breach of a bail condition under section 7 of Bail Act 1976. Claim dismissed

Jamil Hussain v Derby Magistrates court (3rd July, 2001)

Queen on the application of JAMIL HUSSAIN v. DERBY MAGISTRATES' COURT and LORD CHANCELLOR'S DEPARTMENT [2001] EWHC Admin 507 (3rd July, 2001) "This passage ended with the following sentence which was said by Mr Knowles to support his case:

"A solution is likely to be that, Parliament having determined that there should be a swift and relatively informal resolution of the issues raised, the justice must do his best to come to a fair conclusion on the relevant day; if he cannot do so, he will not be of the opinion that the relevant matters have been made out which could justify detention."

Lamy v Belgium (1989) 11 EHRR 529.

In LAMY v. BELGIUM - 10444/83 [1989] ECHR 5 (30 March 1989) the applicant was arrested under a warrant alleging fraud charges. Four days later he challenged his detention at first instance and, having failed to secure his release, he appealed the next day to the Court of Appeal. He complained to the ECtHR on the basis that he had not had access to the investigation file at either stage. At the heart of his complaint was the submission that 'truly adversarial proceedings' were not possible where the prosecution authorities could make submissions based on the full facts of the case but the defence only had access to the limited and somewhat vague) information contained in the arrest warrants. Finding a violation of Article 5(4), the ECtHR observed:

"Access to the documents was essential for the applicant at this crucial stage in the proceedings, when the court had to decide whether to remand him in custody or to release him. Such access would, in particular, have enabled counsel for [the applicant] to address the court on the matter of the co-defendants' statements and attitude. In the court's view, it was therefore essential to inspect the documents in question in order to challenge the lawfulness of the arrest warrant effectively.The appraisal of the need for a remand in custody and the subsequent assessment of guilt are too closely linked for access to documents to be refused in the former case when the law requires it in the latter case."

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