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Bail is the committment made by a person accused of an offence to present himself or herself for trial at a later date. Bail is usually secured by money or property. To be 'remanded on bail' is to have been committed for trial, but allowed out of custody until trial.

Definition of Bail: Being given liberty until the next stage in the case.

Definition of Remand in Custody: Being kept in custody until your trial.

This is an extremely important pre-trial matter which needs to be considered in every case. A person can be released on bail at any point after being arrested by the police, sometimes however it is felt necessary to keep the suspect/defendant in custody until their trial.

Police Bail

The police can release a suspect on bail while they make further inquiries. This means that the suspect is released from custody on condition that they return to the police station on a specified date in the future.

The police can also give bail to a suspect who has been charged with an offence. In this situation the defendant is given bail on condition that they appear at the Magistrates' Court on a specified date.

The decision whether or not to grant bail is made by the custody officer under s38 of the Police And Criminal Evidence Act 1984 (PACE) (as amended by the Criminal Justice and Public Order Act 1994) The custody officer can refuse to grant bail if;

  • the suspect's name and address cannot be ascertained
  • there are doubts about whether the suspect's name and address are genuine
  • If any person fails to surrender to police bail on the date specified then the police have the right to arrest them.

Conditions on Police Bail

The Criminal Justice and Public Order Act 1994 gave the police the power to impose certain conditions on a grant of bail.

These include;

  • asking the suspect to surrender their passport to report regularly to the police station
  • getting another person to stand surety for them

These conditions can be imposed in order to;

  • make sure the suspect surrenders to bail
  • does not commit an offence whilst on bail
  • does not interfere with witnesses
  • does not interfere in any other way with the course of justice When the Police Refuse to Grant Bail

If the police charge a suspect with an offence and are not willing to grant them bail they must bring the defendant before the Magistrates' Court at the first possible opportunity.

It is not usually possible for the Magistrates to deal with the case there and then so they must make the decision whether the defendant is granted bail or remanded in custody. It is only in a very small percentage of cases that the police refuse bail. The main statute relating to whether a defendant should be granted bail by the Magistrates' Court is the Bail Act 1976

The Bail Act 1976

There is an assumption under the Bail Act 1976 that an accused person should be granted bail.

s4 of the Bail Act 1976 gives a general right to bail, however, the Court need not grant a defendant bail if it is satisfied that there are substantial grounds for believing that the defendant, if released on bail, would;

  • fail to surrender to custody
  • commit an offence whilst on bail
  • interfere with witnesses or otherwise obstruct the course of justice
  • needs to be kept in custody for their own protection

When deciding whether to grant bail to the defendant the court will consider various factors;

  • The nature and seriousness of the offence
  • The character, antecedents (past record), associations and community ties of the defendant
  • The defendant's previous record when granted bail
  • The strength of the evidence against the defendant

The court can also set conditions to a grant of bail, similar to the ones which may be made by the police and can also make a condition of bail that the defendant must reside, while on bail, at a certain address or even in a bail hostel.

A defendant can appeal against the refusal of the Magistrates' Court to grant bail. This appeal is to a judge in the Crown Court. Where a defendant has been sent to the Crown Court for trial (indictable and some triable either way offences) the defendant can apply for bail there.

Restrictions on the Right to Bail

In certain cases there is a restriction on the right to bail. Repeat serious offenders Where the current offence was committed whilst already on bail Adult drug users Where an adult offender has tested positive for certain Class A drugs s19 of the Criminal Justice Act 2003 places restrictions on the granting of bail, where; the offender is either charged with possession or possession with intent to supply a Class A drug the court is satisfied that there are substantial grounds for believing that the misuse of a Class A drug caused or contributed to the offence the offender has refused to agree to an assessment regarding their dependency upon certain Class A drugs Prosecution Appeals

The Bail (Amendment) Act 1993 gives the prosecution the right to appeal to a judge in the Crown Court against the granting of bail. This applies to any offence which is punishable with imprisonment.

Crown Prosecution Service guidance for prosecutors


According to Home Office Statistics 12% of those bailed to appear at court fail to do so and nearly 25% of defendants commit an offence whilst on bail.

However it is also argued that far too many people are refused bail, i.e. remanded into custody. Around 14,000 people are currently in British prisons awaiting trial, which is about 20% of the prison population. Of these people some will be found not guilty at their trial, and will not receive any compensation for the time they have spent on remand. (This can sometimes amount to many months) Of those on remand who are found guilty at their trial statistics show around 60% are given non-custodial sentences!

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