Criminal Courts And Criminal Process: Factors And Conditions For Bail (Copy)

1.2.3 Criminal Courts and Criminal Process

Factors and Conditions for Bail

Introduction

• Bail is the temporary release of a defendant awaiting trial, sentencing, or appeal.
• It is a balance between two competing principles:
  1. Presumption of innocence and right to liberty before conviction.
  2. Protection of public and integrity of justice system (preventing absconding, reoffending, or interference with witnesses).
• The Bail Act 1976, as amended by the Criminal Justice and Public Order Act 1994 and later statutes, governs the factors courts and police must consider when deciding on bail.
• Courts can grant unconditional bail or conditional bail, depending on the risks involved.

Factors Considered in Granting or Refusing Bail

Courts assess whether there are substantial grounds for believing the defendant might misuse bail. Key factors (Schedule 1 Bail Act 1976) include:

1. Nature and Seriousness of the Offence
   • More serious offences (e.g., murder, rape, terrorism) → higher likelihood bail refused.
   • Seriousness increases incentive to abscond due to risk of long custodial sentence.
2. Strength of Evidence Against Defendant
   • Strong evidence (e.g., DNA, CCTV) increases likelihood of absconding to avoid conviction.
   • Weak evidence may favour granting bail.
3. Defendant’s Character, Antecedents, and Record
   • Previous criminal record, especially of failing to surrender to bail, weighs against granting bail.
   • Good character, stable job, and family ties increase likelihood of bail.
4. Defendant’s Community Ties
   • Strong family and employment connections suggest they are less likely to abscond.
   • Lack of ties, homelessness, or foreign links raise risk.
5. Past Behaviour on Bail
   • History of breaching bail conditions or committing offences on bail reduces chances.
   • Bail Act 1976 specifically restricts repeat bail for those offending while on bail.
6. Risk of Interference with Witnesses or Obstruction of Justice
   • Courts refuse bail if risk of intimidation of witnesses, destruction of evidence, or collusion.
7. Defendant’s Own Safety
   • Bail may be refused if custody is necessary to protect the defendant from retaliation (e.g., gang cases).
8. Special Cases
   • Drug offences: Restrictions under Criminal Justice and Public Order Act 1994.
   • Murder, manslaughter, rape: Bail harder to obtain; only judges of High Court or Crown Court may grant in some cases.
   • Terrorism offences: Anti-terror legislation imposes additional restrictions.

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 can impose conditions to manage risks. These are set out in s.3 Bail Act 1976.

Common Bail Conditions:

1. Residence Requirement
   • Defendant must live at a specific address, often family home.
2. Reporting to Police Station
   • Must report at regular intervals (daily/weekly).
3. Surrender of Passport
   • Prevents fleeing abroad.
4. Sureties
   • Another person (surety) guarantees to pay a sum if the defendant absconds.
5. Security
   • Defendant deposits money/property as guarantee.
6. Curfew / Electronic Tagging
   • Restricts movement; ensures defendant is at home during specified hours.
7. Non-Contact Orders
   • Defendant prohibited from contacting witnesses, victims, or co-defendants.
8. Exclusion Zones
   • Defendant banned from entering certain areas (e.g., crime scene, victim’s neighbourhood).
9. Attendance at Programmes
   • Conditions may include attending drug treatment, alcohol rehabilitation, or probation appointments.

Consequences of Breach of Bail

• If defendant breaches conditions:
  • Can be arrested without warrant.
  • Court may revoke bail and remand into custody.
  • Future bail applications may be weakened.
• Committing offences on bail → significant aggravating factor in sentencing.

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 Illustrations

• R v Phillips (1990): Bail refused due to serious risk of absconding abroad.
• R v Kwame (1994): Bail refused due to high risk of witness interference.
• Caballero v UK (2000): ECtHR held automatic refusal of bail under CJPOA 1994 for certain serious offences breached Article 5 ECHR (right to liberty).
• Hookway Case (2011): Confusion over time limits on police bail under PACE, later corrected by Parliament.

Evaluation of Bail Factors and Conditions

Strengths

• Balances liberty with public safety.
• Flexibility – wide range of conditions available.
• Presumption of bail protects presumption of innocence.
• Judicial oversight ensures fairness.

Weaknesses

• Risk of offending while on bail undermines public confidence.
• Conditions sometimes too lenient or inconsistently applied.
• Complex rules (CJPOA restrictions, terrorism legislation) reduce accessibility and certainty.
• Bail decisions may disproportionately affect vulnerable defendants (homeless, unemployed).

Conclusion

• Factors for bail focus on risk of absconding, reoffending, interference, and seriousness of offence.
• Conditions of bail under Bail Act 1976 provide flexible tools to manage risk while respecting liberty.
• Although controversial due to high-profile crimes committed on bail, the system reflects a careful balance between individual rights and public safety.

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