BAIL

What is Bail • Bail is the release from custody, pending a criminal trial, of an accused. • A person can be released on bail at any point after being arrested. • In England and Wales the majority of decisions about granting bail before

trial arise at three points. 1. When a suspect has been arrested by the police but the evidence is not

sufficient for charges to be made. 2. When a suspect has been arrested and charged with an offence. 3. When the court has decided to adjourn the hearing of a case to another date.

• The first two decisions are made by the police and the third by the Magistrates Court.

– Please note that bail can be granted at the Crown Court, either by way of appeal against refusal by the magistrates or if a case is sent to the Crown Court for hearing and an application is made during the course of that case.

• All decisions on whether to grant bail (conditionally or unconditionally) therefore involve delicate questions of balancing interests.

• A person is presumed innocent of a criminal charge unless proven guilty Article 5 ECHR.

• This implies that no-one should ever be detained unless he has been found guilty.

• However, it can be regarded as undesirable to allow some accused people back to society before the case against them is tried in a criminal court.

• To refuse bail to an accused might involve depriving someone of their liberty, who is subsequently found innocent of an offence. – Such a person may have been kept in a police cell for

up to 23 hours a day and no compensation would be available under English Law.

Balancing!

Problems With Bail • A person on bail may

– Wish to abscond – Commit further offences – Interfere with witnesses– Obstruct the course of Justice.

• The difficulties involved in finding a balance have been highlighted by several cases of serious assault and rape being committed by persons who were on bail.

• Look at the following recent cases; do you agree with the decision that was made in relation to bail?

• Julian Assanage (2011)

• Gary Weddell (2008)

Police Bail - s38 P.A.C.E 1984• During the Criminal Justice Process the first stage at which bail is

raised as an issue is at the police station. • If a person is arrested on a warrant, this will indicate whether he is to

be held in custody or released on bail. • If a person is arrested without a warrant, then the police will decide

whether to release the suspect on bail after he has been charged.• Section 38 of Police and Criminal Evidence Act (PACE) 1984 states

– That a person must be released unless.• His name and address are not known • The custody officer feels that his detention is necessary for his own

protection.• Prevent him from

– Injuring someone– Damage property – Might abscond – Interfere with the Criminal Justice Process.

Police Bail

• Bail is granted in the majority of cases and can be given to the suspect even if he has not been charged, on the agreement that he will return to the police station on a given date.

• This happened to Chris Jeffries, the first suspect to be arrested in the 2011 Joanna Yeates murder case.

Cont..

• If the police feel they cannot grant bail, the suspect must be put before the magistrates as soon as possible, in order that they can make the decision in relation to bail.

• EAH = Early Administrative Hearing.

• A new concept of Street Bail has recently been introduced under s4 Criminal Justice Act 2003.

The Criminal Justice and Public Order Act 1994 (CJPOA)

• Over recent years the government took the view that bail was too easily granted and too many crimes were being committed by those on bail.

• Part of the aim of the CJPOA was to restrict the granting of Bail.

• Section 27 of this Act amends s38 PACE 1984 so as to allow the police to grant conditional bail to a persons charged.

– The conditions can be whatever is required to ensure that the person

• surrenders to custody

• Does not commit an offence

• Does not interfere with witnesses

• Or otherwise obstruct the course of justice.

Section 25 CJPOA• This provided that in some circumstances, a person who had been

charged or a previously convicted of an offence of – Murder– Rape– Manslaughter– Attempted murder – Attempted Rape

• Must not be granted bail.• This has been seen to be incompatible with the requirements of

Article 5 of the ECHR.– S25 denied the court the opportunity to take a decision based on the merits of

each individual case.– In Caballero v UK (2000), the European Court found that s.25 violated rights

under Art.5(3) where the claimant had been denied bail on a rape charge in 1996 because of a conviction for manslaughter in 1987.

– Anticipating this decision s25 was amended by the Crime and Disorder Act 1998 to provided that bail should only be granted in homicide and rape cases if the “court is satisfied that there are exceptional circumstances which justify it.

Magistrates CourtBail Act 1976

• If the police decide to grant bail to a defendant once they have been charged with an offence;– The defendant will be bailed to appear before the local Magistrates

Court on a set date. • However, having charged a defendant with an offence, the

police refuse bail; – The defendant must be brought before a Magistrates’ Court at the first

possible opportunity. – According to recent Home Office statistics about 5 out of every 6 of

those charged are released on bail. • If the Magistrates cannot deal with the whole case at the first

hearing, the magistrates must then make the decision as to whether the defendant should be given bail or remanded in custody.

• The question as to whether bail should be granted can also be granted at any later stage of the criminal proceedings.

• The criteria that governs the grant or refusal of Bail is contained in this Act.

• There is a statutory presumption of a general right to bail (s.4). – However, this is subject to schedule 1, which states that bail may not be granted

under certain circumstances.

– Schedule 1 provides that the court need not grant grant bail to a person charged with an offence punishable with imprisonment if it is satisfied that there are substantial grounds for believing, that if released on bail, the defendant would:

• Fail to surrender to custody

• Commit offence while on bail,

• Interfere with witnesses or otherwise obstruct the course of justice.

– If the defendant has been charged with an offence which is not punishable with imprisonment, bail can only be refused if he/she has previously failed to surrender and there are grounds to believe he/she will not surrender on the next occasion.

The Bail Act 1976

The Bail Act 1976• Bail can be granted as unconditional or conditional.

• Where it is unconditional, the accused must simply surrender to the court at the appointed date.

– Failure to appear without reasonable cause is an offence under section 6 and can result, if tried in the Crown Court, in a sentence of up to 12 months or a fine.

• Conditions can be attached to the granting of bail where the court thinks that it is necessary to ensure that the accused surrenders at the right time and does not interfere with witnesses or commit further offence.

• There is no statutory limit to the conditions and most common are;– accused reports daily/weekly to a police station.

– resides at a particular address or bail hostel

– surrenders their passport

– does not go to a particular place

– associates with particular people.

– Surety

• Section 7 gives the police powers to arrest anyone on conditional bail whom they reasonably suspect of breaking those conditions. ‘Bail Bandits’

• Anyone arrested under these circumstances must be brought before the Magistrates within 24 hours, who may then reconsider the question of Bail.

Court’s Decision to Grant Bail

• In deciding to grant bail, the court will consider various factors; – The nature and seriousness of the offence – The character, past record, associations and

community ties of the defendant– What is the defendant’s record in relation to

previous grants of bail– Strength of the evidence against him.– How effective do you think bail conditions are

in light of the case Weddell.

Appeals and Re-Applications

• The rules which govern how someone who has been refused bail might reapply and appeal have also been framed with a view to balancing the interests of the accused with those of the public and justice.

• The original refusal should not be absolute and final, but on the other hand, it is seen as necessary that the refusals are not reversed too easily.

• If the court decides not to grant bail, then Schedule 1 of the Bail Act 1976 – provides that it is the courts duty to consider whether the

defendant ought to be granted bail at each subsequent hearing.

Appeals and Re-Applications

• The Interest of the accused are also served by the variety of appeals he may make if bail has been refused.

• If bail has been refused by a magistrates then, in limited circumstances, an application may be made to another bench of magistrates.

• Appeal can also be made to a Crown Court in respect of bail where a defendant has been committed for trial or sentence at Crown Court.

Restrictions on Bail

• The right to liberty is a fundamental human right – Therefore bail must be available even for serious offences.

• However, in some circumstances the right to bail may be restricted in order to protect the public; – Terrorism

• Foreign nationals who are suspected of being involved in terrorist activity have no right to bail, Anti-Terrorism, Crime and Security Act 2001;

– Repeat serious offenders• A person charged with attempted rape, rape, murder or attempted

murder and they have already served a prison sentence for such a similar offence will only be granted bail in exceptional circumstances. S25CJPO Act 1994 S56 Crime and Disorder Act 1998 Caballero v UK 2000.

– Offence Committed whilst on bail• May not be granted bail for the current and subsequent alleged

offences unless there is no significant risk to the public S14 CJA 2003.

– Restrictions on Bail for adult drug user under Criminal Justice Act 2003

Advantages of Bail

• It is very important that a balance is maintained in terms of upholding the defendants Human Rights and protecting the public. This is especially important because at this point the suspect s still innocent until proven guilty, so should not be treated as a convicted criminal.

Cont..• There is a reduction in the number of

defendants on remand, which means less cost to the government. The Home Office suggests that up to 20% of those in our prisons are there awaiting trial and may go on to be found innocent, or be given non-custodial sentences.

• The defendant can maintain employment and spend time with family during his bail period.

Cont.

• The defendant can use the time to prepare for his trial by not being restricted in terms of being able to meet with his legal representatives.

Disadvantages

• There is a risk that the defendant will interfere with witnesses or otherwise obstruct the course of justice – in the case of Shannon Matthews, had the suspects been granted bail, it would have been an opportunity for them to further conceal evidence and impede the investigation.

Cont..

• There seems to be disparity in the interpretation of the Bail Act 1976 in different courts.

• Home Office statistics state that 12% of bailed offenders fail to appear at their trial.

• It is thought a third of burglaries are committed by people who are on bail for another offence.