Criminal Courts And Criminal Process: Bail From The Court – Bail Act 1976 (Copy)

1.2.3 Criminal Courts and Criminal Process

Bail from the Court – Bail Act 1976

Introduction

• Bail is the temporary release of a defendant awaiting trial or sentence, subject to conditions designed to secure their attendance at court and protect the public interest.
• The main legislation governing court bail is the Bail Act 1976.
• The Act codified and clarified the principles of bail, establishing a general presumption in favour of bail unless specific exceptions apply.
• The Act seeks to balance:
  • Presumption of innocence (liberty before conviction).
  • Public safety and justice (ensuring appearance at trial, preventing reoffending, and protecting witnesses).

Presumption in Favour of Bail

• Under s.4 Bail Act 1976, every defendant has a right to bail when charged with an offence, unless exceptions apply.
• Bail is available:
  • Pre-trial (before trial begins).
  • During trial (adjournments).
  • Post-conviction but pre-sentence (before sentencing).
• Exceptions are set out in Schedule 1 Bail Act 1976.

Grounds for Refusing Bail

The court may refuse bail if there are substantial grounds to believe that the defendant would:

1. Fail to Surrender to Custody
   • Risk of absconding.
   • Factors considered: ties to the community, past record of attending court, seriousness of offence.
2. Commit Further Offences on Bail
   • Particularly relevant where defendant has criminal record or offence committed while already on bail.
   • CJPOA 1994 tightened rules here.
3. Interfere with Witnesses or Obstruct Justice
   • Risk of intimidation of witnesses or destruction of evidence.
4. Defendant’s Own Protection
   • If at risk of retaliation (e.g., gang-related cases).
5. Already on Bail
   • Bail may be refused where offence committed during an earlier period of bail.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Conditions of Bail

• If bail is granted, the court may impose conditions under s.3 Bail Act 1976 to ensure compliance.
• Examples of Bail Conditions:
  • Residence Requirement – must live at a specific address.
  • Sureties – another person promises to pay money if defendant absconds.
  • Securities – defendant deposits money/property as guarantee.
  • Reporting Conditions – must report to police station at set intervals.
  • Curfew – often enforced by electronic tag.
  • Restrictions – e.g., not contacting witnesses, avoiding specific places or people.
  • Surrender of Passport – prevents absconding abroad.
• Breach of bail conditions may lead to arrest and remand in custody.

Appeals and Challenges

• If bail refused by Magistrates’ Court → defendant can apply to Crown Court for bail.
• Prosecution can also appeal to the High Court against grant of bail in serious cases (Bail (Amendment) Act 1993).
• Judicial review possible where bail decisions are unreasonable or unlawful.

Restrictions on Bail

• Serious Offences: Under s.25 Criminal Justice and Public Order Act 1994, bail is restricted for defendants charged with serious violent or sexual offences who already have convictions, unless there are exceptional circumstances.
• Repeat Offenders: Stricter bail provisions apply if the defendant committed an offence while already on bail.
• Terrorism Cases: Additional bail restrictions under Anti-Terrorism legislation.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Case Law Examples

• R v Phillips (1990): Bail refused due to risk of absconding abroad; court emphasised seriousness of offence.
• R v Kwame (1994): Bail refused where defendant likely to interfere with witnesses.
• Hookway Case (2011): Highlighted confusion over time limits on police bail, leading to parliamentary amendment.
• Caballero v UK (2000): European Court of Human Rights criticised automatic denial of bail for certain offences under CJPOA 1994 as contrary to Article 5 ECHR (right to liberty).

Evaluation of Court Bail under Bail Act 1976

Strengths

• Clear presumption in favour of bail protects presumption of innocence.
• Flexible conditions balance liberty with protection of the public.
• Courts have discretion, guided by statutory criteria.
• Appeals process ensures oversight of bail decisions.

Weaknesses

• Public concern over crimes committed on bail undermines confidence.
• Conditional bail may still fail to prevent offending.
• Restrictions introduced by CJPOA 1994 criticised as undermining liberty.
• Complex case law and amendments create uncertainty.

Conclusion

• The Bail Act 1976 is central to the English bail system, ensuring defendants are not unnecessarily deprived of liberty before trial.
• By establishing a presumption in favour of bail and allowing conditional release, it balances fairness with public safety.
• Later amendments (CJPOA 1994, terrorism laws) restricted bail in certain circumstances, but overall the Act remains a key protector of justice, liberty, and effective criminal procedure.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course