Under s. 4 of the Bail Act 1976, on each occasion that a person is brought before a court accused of an offence, or remanded after conviction for enquiries or a report, he must be granted bail without condition, if none of the exceptions to bail apply.

The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail, would:

  • fail to surrender to custody, or
  • commit an offence while on bail, or
  • interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

These are known as the exceptions to the right to bail. The arguments that occur in Court on bail applications involve the prosecution and the defence arguing over whether it can be said that one of these exceptions apply.

A bail application can be made in front of the Magistrates in the course of a first hearing. In practice, the Magistrates are unlikely to grant bail in serious cases. The prosecutor will address them on why they consider one of the exceptions to apply. Your job is to argue that either there is no risk of any of the exceptions applying, or that any risk of the exceptions applying can be mediated by the imposition of conditions. Conditions could include: surrendering of a passport and not to apply for additional travel directions; not going within a particular postcode or not to contact important witnesses. The Court will consider whether the risk posed by the defendant on bail can or cannot be adequately managed by the imposition of bail conditions.

If bail is refused it can only be applied for again where there is a substantial change in circumstances since the last application.

Under s. 81 of the Senior Courts Act 1981, a defendant may appeal a decision of a Magistrates Court to withhold bail, but only where he or she has obtained a certificate from the Magistrates (under s. 5(6A) of the Bail Act 1976) that they have heard full argument from the defendant before refusing his application. The application for bail can then be made in front of a Crown Court.

Rule 14.8 of the Criminal Procedure Rules sets out what the Defence must include in its Notice of Application and how the Crown must respond.

Defendant’s application or appeal to the Crown Court after magistrates’ court bail decision 14.8.—

(1) This rule applies where a defendant wants to—

 (a) apply to the Crown Court for bail after a magistrates’ court has withheld bail; or

b) appeal to the Crown Court after a magistrates’ court has refused to vary a bail condition as the defendant wants.

(2) The defendant must—

 (a) apply to the Crown Court in writing as soon as practicable after the magistrates’ court’s decision; and

(b) serve the application on— (i) the Crown Court officer, (ii) the magistrates’ court officer, (iii) the prosecutor, and (iv) any surety affected or proposed.

(3) The application must— (a) specify— (i) the decision that the applicant wants the Crown Court to make, and (ii) each offence charged; (b) explain— (i) as appropriate, why the Crown Court should not withhold bail, or why it should vary the condition under appeal, and (ii) what further information or legal argument, if any, has become available since the magistrates’ court’s decision; (c) propose the terms of any suggested condition of bail; (d) if the applicant wants an earlier hearing than paragraph (6) requires, ask for that, and explain why it is needed; and (e) on an application for bail, attach a copy of the certificate of full argument served on the defendant under rule 14.4(4).

Breaching bail

Where a defendant fails to attend a Court hearing he can be charged with a separate criminal offence. Breach of conditions of bail is not a Bail Act offence, nor is it a contempt of court unless there is some additional feature (R v Ashley [2004] 1 Cr. App. R. 23).

While breaching bail is not a criminal offence, it does give rise to a power of arrest. Section 7(3) of the Bail Act 1976 confers power upon a police officer to arrest a person if he has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions.

Under s. 7(4) of the Bail Act 1976, a person so arrested must be brought as soon as practicable, and in any event within 24 hours of his arrest, before the magistrates court for the area in which he was arrested. The arrested person must be dealt with within that 24 hour period; bringing him before the court is insufficient – R v Culley [2007] EWHC 109 (Admin). 

The Court will then consider whether the defendant should be granted bail again, or remanded into custody. Practically, if there is evidence that the breach of bail was serious, then it is likely that the defendant will be remanded into custody.