Bail Applications — SQE1 FLK2 Criminal Law and Practice

Your client is charged with a violent offence that has been in the national press all week. He has lived at the same address for twenty years, has never failed to surrender, and has never gone near a witness. The prosecution accept all of that. They ask the bench to remand him anyway, because releasing him would damage public confidence in the criminal justice system. Can they refuse bail on that ground? No.

There is no such ground. Not in the Act, not anywhere. This is Bail: where the right comes from, the closed list of reasons for taking it away, and what you do when it is refused. Keep your client in mind. We are coming back for him.

Here is the route. The general right, and the closed list of exceptions to it. Then the three main grounds, and the factors that feed them, which is where most marks are lost. Then the places a real presumption does bite. Then conditions, and police bail. Then what happens when bail is refused: further applications and appeals. And finally breach, absconding, and the offence that is not an offence.

Start with the section that does all the work. s 4 of the Bail Act 1976. A person accused of an offence shall be granted bail except as provided in Schedule 1. Read the shape of that. Release is the default. The defendant does not have to argue for his liberty; the prosecution has to bring the case within an exception.

And Schedule 1 is a closed list. That is your client's answer, so learn what is on it. Paragraph 2 holds the three main grounds. Paragraph 3 is the defendant's own protection. Paragraph 4 is where he is already serving a custodial sentence. Paragraph 5 is insufficient information. Paragraph 6 is arrest under s 7. Nothing about public confidence appears anywhere.

The three grounds in paragraph 2 are the ones you will meet again and again. Substantial grounds for believing the defendant would fail to surrender to custody. Or would commit an offence while on bail. Or would interfere with witnesses, or otherwise obstruct the course of justice. Note the standard. Substantial grounds for believing, not suspicion, and not a theoretical possibility.

Then paragraph 9, and this is where candidates come unstuck. Paragraph 9 lists what the court must have regard to in deciding whether a paragraph 2 ground is made out. The nature and seriousness of the offence and the probable method of dealing with it. The defendant's character, antecedents, associations and community ties. The strength of the evidence. And his record as respects previous grants of bail.

Now hold those two things apart, because the exam turns on it. Paragraph 2 gives you grounds. Paragraph 9 gives you factors. A factor is something the court weighs on the way to a ground. It is not a ground of its own, and it never creates a presumption against bail.

So take a defendant with a previous conviction, and a suspended sentence for it. Nothing in the Bail Act 1976 creates a presumption against bail because of a previous conviction, or because of a previous sentence. His record is part of his character and antecedents, which the court weighs under paragraph 9. He keeps the right to bail under s 4 unless the prosecution establishes a ground.

The same goes for seriousness, which is what defeats the prosecution in your client's case. The seriousness of the offence and the likely sentence are paragraph 9 considerations. They feed the paragraph 2 grounds. If the prosecution have conceded that he will surrender, will not offend and will not go near a witness, then seriousness has nothing left to feed, however unpopular his release.

There are places where a presumption really does bite, and you need to know both of them. The first is paragraph 2A. Take an adult charged with an indictable or either-way offence. If it appears to the court that he was on bail in criminal proceedings on the date of that offence, he need not be granted bail. The s 4 presumption is displaced.

But note what paragraph 2A does not do. It is not an absolute bar, and there is no exceptional circumstances test in it. The court keeps a discretion and weighs the paragraph 9 factors as usual. It simply starts from a different place.

The genuine exceptional circumstances test lives somewhere else, in s 25 of the Criminal Justice and Public Order Act 1994. Two conditions, and both must be met. The defendant is charged with murder, attempted murder, manslaughter, rape or another specified grave offence. And he has a previous conviction for such an offence. Then bail may be granted only if the court is satisfied that there are exceptional circumstances which justify it.

Murder is reserved entirely. Under s 115 of the Coroners and Justice Act 2009 a person charged with murder may not be granted bail except by a Crown Court judge. The magistrates have no power to grant it. They must send the question up, and the judge must decide as soon as reasonably practicable and in any event within 48 hours. And by s 114(2), bail only if there is no significant risk of his committing an offence causing physical or mental injury to another.

Conditions next. Sometimes the court is worried, but not worried enough to refuse. Under s 3 of the Bail Act 1976 it can attach conditions, and they may be imposed only for the statutory purposes. To secure surrender to custody. To prevent an offence on bail. To prevent interference with witnesses or obstruction of justice. And to secure the defendant's availability for enquiries or a report.

Punishment is not on that list. A condition requiring a defendant to write a letter of apology is not a bail condition at all, because it serves none of the statutory purposes. Conditions must be necessary, and proportionate to the risk actually identified. A curfew on a low-risk defendant facing a minor charge is open to challenge.

The menu itself is worth knowing. Residence at a specified address. Reporting to a police station. Non-contact with named people. A curfew, sometimes with electronic monitoring. Surrender of a passport. And the two money ones, which examiners love because candidates mix them up.

So try one. One defendant offers his own £20,000, paid into court before release. Another offers his uncle, who will promise to pay if he absconds. Which of those has to be handed over before the defendant walks out? The money paid into court. That is a security, given in advance and held against his surrender.

The uncle is a surety. He pays nothing up front; he enters into a recognizance, promising a sum if the defendant fails to surrender. But note the timing, because it catches people. A surety is a pre-release condition. Bail has been granted, and the defendant still stays in custody until the recognizance has actually been entered into.

And if the defendant then absconds, forfeiture is the starting point. R v Southampton Justices ex parte Green. The surety must satisfy the court that he took all reasonable steps to secure the defendant's attendance; it is not for the court to justify taking the money. A surety who does nothing and hopes for the best will pay.

Police bail now, and there are two kinds. After charge, s 47 of PACE 1984 lets the police release on bail. Section 3A of the Bail Act 1976 lets the custody officer attach conditions, for the same purposes that apply in court. If those conditions are too tight, ask a custody officer at the same station to vary them, and if that fails, apply to the magistrates' court.

Before charge is different, and the time limits are examinable. The initial applicable bail period is 3 months, authorised by the custody officer. An inspector can extend it to 6 months. A superintendent can extend it to 9 months. Beyond 9 months it takes an application to the magistrates' court.

And the alternative is release under investigation, which is simply release without bail. No conditions can be attached, none of the applicable bail period machinery applies, and there is no clock at all. The suspect can be left in limbo indefinitely, which is exactly the criticism made of it.

Say the court refuses. Under s 5 of the Bail Act 1976 a court that withholds bail must state its reasons, and those reasons must be recorded. That is not a formality. The defendant needs to know which exception was relied on and what facts got the court there, because that is what he has to answer next time.

So what is next time? A further application to the same magistrates. Schedule 1 requires the court to consider bail at each subsequent hearing while he remains in custody. But it need not hear arguments as to fact or law that it has heard before. R v Nottingham Justices ex parte Davies. The court looks for a change in circumstances, or a consideration not previously advanced.

So a new address and a surety who was not available last time will get you a hearing, because both go directly to the ground on which bail was refused. Saying the same thing more loudly will not. And there is no waiting period, and no automatic right to a second bite: what matters is whether you have something new to say.

The other route is upwards. The defendant may apply to the Crown Court under s 81 of the Senior Courts Act 1981, and the judge hears the application afresh rather than reviewing the justices' reasoning. These are alternative routes, not sequential ones. And the old High Court bail jurisdiction is gone, abolished by s 17 of the Criminal Justice Act 2003.

Appeals run the other way too. Under s 1 of the Bail (Amendment) Act 1993 the prosecution may appeal to a Crown Court judge against a grant of bail for an imprisonable offence. Three requirements. It must have opposed bail at the hearing. It must give oral notice at the conclusion of the hearing, before the defendant is released. And it must serve written notice within 2 hours.

Miss the 2 hours and the appeal is deemed to have been disposed of, and the defendant goes on the bail the magistrates granted. If the notice is in time, he is held and the appeal is heard afresh by a Crown Court judge within 48 hours.

Which leaves breach. Try another one. Your client is on conditional bail with a curfew. A patrol calls at eleven at night and he is not there. What offence has he committed by breaking the curfew? None. Breaching a bail condition is not a criminal offence at all.

What it does is engage s 7. A constable may arrest without warrant where he has reasonable grounds for believing that the person has broken a condition, or is not likely to surrender. He may also arrest where a surety gives written notice that the person is unlikely to surrender, and wants to be relieved of his obligations. The arrested person must be before a magistrates' court as soon as practicable and within 24 hours.

The court then has three choices. Leave the bail as it is, vary or add conditions, or withdraw bail and remand him in custody. That last one is the real sanction for breaching a condition, and it is a good deal more serious than a prosecution would have been.

The offence is the other thing. Under s 6 of the Bail Act 1976 a person released on bail who fails without reasonable cause to surrender to custody commits an offence. Reasonable cause is built into the offence rather than sitting in mitigation, and the burden of proving it is on the defendant.

And s 6(2) closes the obvious gap. A defendant who did have reasonable cause for missing the appointed time still commits the offence if he fails to surrender as soon after that time as is reasonably practicable. Ill on the morning is an answer. Ill on the morning and never turning up at all is not. The maximum is three months on summary conviction, and 12 months on indictment.

One last point, which is easy to forget in a statute-heavy topic. Article 5(3) of the European Convention on Human Rights entitles a person detained on suspicion of an offence to trial within a reasonable time, or to release pending trial. A long remand with no trial date is itself a reason to go back and ask again.

A word on how SQE1 tests this. You will not be asked to recite a section number or a case name. You get a scenario, five answers, and one instruction: pick the best. This topic has only two case names worth carrying, because almost everything in it is statute, and the wrong options will be plausible-sounding grounds that are not in the Act.

If you keep only three. s 4 and Schedule 1 together, because the list of exceptions is closed and public confidence is not on it. Paragraph 9, because it gives factors and never a presumption. And R v Nottingham Justices ex parte Davies, for the change in circumstances that buys you a second hearing.

Four traps. One: a previous failure to surrender raises no presumption against bail. It is part of his record under paragraph 9, and its weight depends entirely on why he failed. A documented hospital admission is close to no adverse indication at all.

Two: paragraph 2A removes the presumption in favour of bail for offending on bail, but it imposes no exceptional circumstances test. The only exceptional circumstances test is s 25 of the Criminal Justice and Public Order Act 1994. It needs a grave charge and a previous conviction for a grave offence.

Three: breaching a condition is not an offence; failing to surrender is. Four: keep the two money conditions straight. A security is the defendant's own money, paid in before release. A surety is someone else's promise, given by recognizance. Then a habit for the exam. Name the paragraph, and ask whether the thing the prosecution is relying on is a ground or merely a factor.

Quick check. A woman is charged with assault. Six months ago, in unrelated proceedings, she was bailed and failed to attend on the appointed day. She was taken to hospital that morning with a severe asthma attack, and she has the records. She has attended every other hearing, and has no other convictions. The prosecution say that earlier failure raises a presumption that bail must now be refused. Are they right?

Three candidate answers. One: yes, and bail may be granted only if she shows exceptional circumstances. Two: no, because the earlier failure arose in different proceedings and must be disregarded. Three: no, because her record on previous grants of bail is a factor, not a presumption. Pause here if you want a moment.

The answer is three. No exception in Schedule 1 is triggered by a previous failure to surrender. What it does is engage paragraph 9, and specifically her record under previous grants of bail. That is weighed on the way to a paragraph 2 ground. It is not a ground itself.

And the weight depends on why she failed. A documented hospital admission, set against a clean attendance record, leaves the prosecution nowhere near substantial grounds. Option one fails because the exceptional circumstances test belongs to s 25, which needs a grave charge and a previous conviction for one. Option two reaches the right answer by the wrong route: her record counts whichever proceedings it arose in.

Five things to take away. One: s 4 gives a general right to bail, and Schedule 1 is a closed list, which is why your client walks despite the headlines. Two: paragraph 2 gives grounds and paragraph 9 gives factors, and a factor never becomes a presumption.

Three: the two real presumptions are paragraph 2A, for offending on bail, and s 25 of the Criminal Justice and Public Order Act 1994. Only the second carries an exceptional circumstances test. Four: a security is paid before release, a surety is a promise, and it must be taken before he walks.

Five: breaching a condition is not an offence, but it will get you arrested under s 7 and can cost you your bail. Failing to surrender is an offence, under s 6. Next time, First Hearings and Representation.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.