- Relevant Legislation
- Pre-charge Bail
- Failure to Surrender
- Breach of conditions of Bail
- Magistrates' Courts: The Role of the Prosecutor
- Victims and Witnesses
- Imprisonable Offences
- Imprisonable Summary Offences
- Procedure at the magistrates' courts
- Court Conditional Bail
- Electronic tagging for Adults
- A Remand in Custody
- Bail Information Scheme
- Provision of Bail Accommodation and Support Service for Defendants
- Exception to the Right of Bail: Defendant on Bail at time of alleged offence
- Non-Imprisonable Offences
- Lack of Information
- The Application in Court
- Technical Bail
- Variation of conditions/imposition of conditions
- Criminal Procedure Rules
- Defence right of appeal against imposition of conditions by magistrates
- Prosecution Application to Reconsider Bail: Section 5B Bail Act 1976
- Section 19 Criminal Justice Act 2003 - Drug Users: Restriction on Bail
- Magistrates' Courts: Post Conviction Application
- Committal for Trial
- Youths and Youth Courts
- Youth Court
- Youth Offender: Remands
- Youth Offender : Bail
- Youth Offender: Remands to Local Authority Accommodation
- Youth Offender: Remands with Security Requirements
- HMCS Joint Protocol and Guidance on Court Ordered Secure Remands
- Youth Offender: Secure Accommodation Orders
- Youth Offender: Local Remands
- Bail Applications In The Crown Court
- Applications to the High Court
- Failing to Surrender to Bail: Charging Practice
- At Committal Proceedings
- Failing to Surrender to Bail: Public Interest Considerations
- Failing to Surrender to Bail: Breach of Court Granted Bail
- Failing to Surrender to Bail: Breach of Police Granted Bail
- Breach of Bail in Cases where Extradition is being sought by a Foreign Government (export extradition)
- Bail (Amendment) Act 1993 (The BAA)
Decisions on bail in criminal courts represent an important stage in the prosecution process. The results of these decisions can have far reaching consequences for victims of crime and the public in general.
From the viewpoint of the defendant, bail decisions made by a Court can result in the deprivation or restriction of liberty for a substantial period of time.
It is vital that Prosecutors recommend the appropriate course of action to a Court in connection with bail and that sufficient comprehensive information is available to a Court in connection with the decision whether or not to grant bail.
These principles and much of the guidance below will apply whether the question of bail is before a Magistrates' Court, a Youth Court, a Crown Court or the High Court.
Most of the law and practice concerning bail applications is contained in the following:
- Bail Act 1976 (The Act);
- Bail (Amendment) Act 1993 (The BAA);
- Magistrates' Court Act 1980;
- Magistrates' Court Rules 1981;
- Supreme Court Act 1981;
- Rules of the Supreme Court;
- Criminal Procedure Rules 2005;
- Police and Criminal Evidence Act 1984; (PACE)
- The Consolidated Criminal Practice Direction amended and reissued 18 May 2004, I.13, III.25, IV.50 and V.53
There are broadly three scenarios pre-charge where the police may decide to grant bail with or without conditions or withhold bail altogether:
- where there is as yet insufficient evidence to charge with an offence suspects whom it is necessary to continue to investigate without their having to be held in custody (s 37(2) PACE);
- where the police consider there is sufficient evidence to charge but the case has been referred to the CPS for a charging decision (s 37(7)(a) PACE); and
- where there is sufficient evidence and the person is charged with an offence (s 37(7)(d) PACE).
(see also DPP's Guidance on Charging 4th Edition 2011)
However conditional bail before charge is not permitted when a person is bailed pending further (possibly lengthy) investigation under section 34(5) PACE.
Under the Code for Crown Prosecutors the Threshold Test may only be applied where the prosecutor is satisfied that all the following four requirements are met:
- there is insufficient evidence currently available to apply the evidential stage of the Full Code Test, and
- there are reasonable grounds for believing that further evidence will become available within a reasonable period, and
- the seriousness or the circumstances of the case justifies the making of an immediate charging decision, and
- there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and, in all the circumstances of the case, an application to withhold bail may be properly made
Accordingly the Threshold test may only be used to charge a suspect who is to be detained in custody to allow evidence to be gathered to meet the Full Code Test realistic prospect of conviction. It is not applicable in cases where the suspect is bailable under sec 34 or sec 37(2) PACE.
Where the Threshold Test is applicable a realistic timetable should be set for outstanding evidence to be gathered that meets the full Code test. Prosecutors should ensure a strict application of the Threshold test in accordance with the Director's Guidance.
Note that police powers to impose conditions are not identical to court powers to impose conditions. Specifically, police may not impose a condition to reside at a bail hostel, to attend an interview with a legal adviser, nor require the suspect to make him or herself available for inquiries and reports.
If Custody Officers are in doubt as to whether conditions attached to bail will be sufficient to avert the risk of absconding etc, they will discuss the question with the Duty Prosecutor to establish whether there is sufficient evidence to charge with a view to seeking a remand in custody. However bail is ultimately a decision for the police, namely the Custody Officer.
Conditions imposed by an officer may be varied by the magistrates court on application by the suspect (section 47(1E) PACE). The magistrates can confirm the same conditions, impose different conditions, or direct that bail shall be unconditional. It continues to be police bail. See Criminal Procedure Rules, Part 19, bail in the magistrates' court and the Crown Court for further information.
Prosecutors are responsible for determining the charge under the statutory charging arrangements, however the police may nevertheless determine the charge in certain cases, including an offence of absconding contrary to section 6(1) or 6(2) of the Bail Act (see DPP's Guidance on Charging 4th Edition 2011).
Whether or not the defendant has failed to surrender to court bail will depend on the arrangements in the particular court to which the defendant is to surrender. The position may differ between the magistrates' court and the Crown Court.
In DPP v Richards (1989) 88 Cr.App.R 87 the defendant was on bail to appear at the magistrates' court. The court displayed a notice which required all persons due to appear in court to report to the enquiry counter. The defendant did report and then complied with the instructions to wait in the concourse before becoming tired of waiting and leaving the building. Following conviction for failing to surrender the defendant appealed to the Crown Court, Glidewell LJ stated:
"...what precisely constitutes the person or body to whom a person on bail is to surrender depends upon the procedure followed at the particular court and the directions given in accordance with that procedure to the person who is coming to surrender...If having done so the person at the Inquiry office said: 'Go to the cells and surrender to a prison officer' that would have been the surrender. If the Inquiry officer says: 'Go and sit in the concourse until your case is called,' then the court procedure envisages that being the surrender to the court".
A little later at page 104 he said this:
"I take the view that if a court provides a procedure which directs - there has to be some form of direction, by notice or by oral direction - a person surrendering to bail to report to a particular office or to a particular official, when he complies with that direction he surrenders to his bail."
What constitutes surrender may vary according to the arrangements which are made for accepting surrender at any particular court.
Even if the circumstances do not amount to a Bail Act offence, the court may still issue a warrant for the defendant's arrest (s.7(2))
In R v Evans (Scott Lennon)  EWCA Crim 2842, the defendant arrived at the Crown Court where he informed his advocate of his arrival. He left before his case was called and was convicted of failing to surrender. The Court of Appeal stated:
"...the general practice of accepting surrender by way of entry into the dock accords not only with common experience and general practice but also with principle...Crown Court surrender may also be accomplished by the commencement of any hearing before the judge where the defendant is formally identified and whether he enters the dock or not."
The Court did not agree that reporting to the usher amounts to a surrender. Section 2(2) of the Bail Act states "'court' includes a judge of the court, or a justice of the peace...having powers to act in connection with the proceedings before the court..."
A bail notice stating a particular time for the defendant to attend is a notice that he must "be at the Crown Court in order to surrender when called upon and it is a notice that that may happen at any time from 9.30 in the morning onwards".
Mere arrival at the Crown Court building does not constitute surrender, neither does reporting to an advocate. Surrender has to be accomplished personally by the defendant.
"...in the absence of special arrangements either particular to the court or particular to the individual case, surrender to the Crown Court is accomplished when the defendant presents himself to the custody officers by entering the dock or where a hearing before the judge commences at which he is formally identified as present. Secondly, if there has been no previous surrender, as ordinarily there will have been it is also accomplished by arraignment. Thirdly, the position in the Magistrates' Court may be the same, but may easily differ as explained in DPP v Richards".
Breach of conditions of Bail
Revised Practice and Procedure
Breach of conditions of bail is not a Bail Act Offence, nor is it a contempt of court unless there is some additional feature (Ashley  1 Cr App R 23).
The police have a power of arrest where conditions imposed on pre-charge bail have been breached (see section 46A PACE 1984 as inserted by CJPOA 1994 Section 29 (2)). Where a person has been re-arrested, section 37 C (2) (b) PACE gives the police the power to release (again) "without charge, either on bail or without bail". Section 37 C (4) states explicitly that if a person is released on bail under section 37 C (2)(b), then that person shall be subject to whatever conditions applied before the 're-arrest'. It appears that there is no power to change conditions of bail at this point.
Section 7 of the Bail Act 1976 confers power upon the Police to arrest a person if the Constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions.
A person so arrested must be brought as soon as practicable, and in any event within 24 hours of his arrest, before a Justice of the Peace of the Petty Sessions for the area in which he was arrested.
Prosecutors are reminded of R v Culley  EWHC 109 which states that where a person has breached their bail, they must not only be brought before the court 'as soon as is practicable' but also be dealt with within 24 hours of arrest (see s7 (4) Bail Act 1976).
Prosecutors must be vigilant in this respect and ensure that the court is aware of the 24-hour limit otherwise the defendant will have to be released, if not dealt with within the 24-hour period.
The issue was further considered by the Divisional Court in the case of McElkerney v Highbury Corner Magistrates' Court  EWHC 2621 (Admin). Although the point did not require ruling upon in the context of the application under consideration, Lord Justice Richards commented as follows on the principle that had supposedly been established by the case of Culley:
"For my part, however, I would wish to look at the point more closely if it were essential for the resolution of the present application. The statutory requirement is that the person be brought before a justice as soon as practicable and in any event within 24 hours after his arrest. It is not on the face of it a requirement that the justice's decision be reached within the
24-hour period. Nor am I satisfied that the cases relied on in Culley lead to the conclusion reached by Forbes J in that case."
A Justice of the Peace before whom the defendant is brought may remand him in custody or grant bail subject to the same or to different conditions(Archbold 3- 37, 3- 38), if of the opinion that:
- the defendant is not likely to surrender to custody; or
- that the defendant has broken or is likely to break any condition of bail,
The effect of Section 7(5) of the Bail Act 1976 that was considered in R v Liverpool City Justices ex p DPP (1993) QB 233 established five propositions:
- That the Constable (who has arrested the person bailed bringing him before the Justices) must state his grounds for believing the defendant had broken or is likely to breach a condition of his bail. This may well involve the giving of "hearsay evidence".
- In the proceedings before the Justices, even where the defendant disputes the ground on which he was arrested, there is no necessity for the giving of evidence on oath or providing an opportunity to the person arrested, or his legal representatives, to cross-examine, or to give evidence himself. Nevertheless, the Justice should give the defendant an opportunity to respond to what the Constable alleges.
- The Justices have no power to adjourn the proceedings and must consider, on the material before them, whether they are able to form one of the opinions set out in section 7(5) and if he does so, go on to decide whether or not to remand the defendant in custody or on bail on the same or more stringent conditions.
- If the Justices feel unable to form one of the opinions set out in section 7(5) they must order the person concerned to be released on bail on the same terms as were originally imposed.
- Proceedings under section 7(5) do not preclude a defendant who is remanded in custody from making an application for bail to the Justices, or to a Crown Court or to a Judge, as appropriate.
The presumption in favour of granting bail under section 4 of the Act will be subject not only to the exceptions of the right to bail in part 1, paragraph 2 of schedule 1 to the Act, but also to the exception in paragraph 6 of the Schedule.
The Divisional Court in the case of R v Havering Magistrates ex parte DPP and R v Wirral Borough Magistrates ex parte Mark McKeown (2001) 2 Cr App R 12  Crim LR 903 considered these propositions and whether or not there were any breaches under Article 5 and 6 of the European Convention on Human Rights and has held that R v Liverpool City Justices ex parte DPP (1993) QB 233 remains good law.
These authorities were considered in R (Vickers) v West London Magistrates' Court  EWHC 1809 (Admin), where it was held that the words "reasonable excuse" should not be imported into section 7(5), and the breach of conditions was just one factor for the court to take into account when deciding whether to grant bail again.
In practice Prosecutors should not ask courts to deny a defendant bail simply because he or she was arrested in pursuance of section 7 and Courts should not withhold bail simply on that ground alone.
Where the defendant is arrested for a new offence and it is also alleged that he is in breach of one or more bail conditions, the police must give considerations as to whether the breach of bail as well as the new offence should be placed before the court within 24 hours of an arrest for the breach of bail. If this is possible, the suspect should be arrested for breach of bail as well.
Where the nature of the enquiries for the new offence makes it not feasible for the defendant to be produced before the court within 24 hours of an arrest for breach of bail, the police should delay the arrest under section 7 Bail Act 1976 and only make the arrest when the enquiries for the new offence have been completed. The key point to note is that the breach should not be lost amongst the other proceedings. The procedure to follow is that the enquiries should be dealt with and then the person arrested for breach of bail and brought before the court.
Magistrates' Courts: The Role of the Prosecutor
In all cases you will consider recommendations made by the Police relating to bail. Where practicable, if you disagree with the Police view on bail, you will consult with the Police regarding the course of action you propose. Further, you should consider whether consultation needs to take place at a more senior level within the CPS and the Police.
Having considered the views of the Police, it is the Prosecutor's duty to make a specific recommendation to the Court regarding its decision whether or not to grant bail and, if appropriate, upon which conditions. You should be in a position to present a logical, structured application setting out the arguments supporting whatever course you propose.
Bail applications can occur at any stage of the progress of a case. You should keep the bail position of a defendant under review throughout the life of the case. The Prosecution has a duty to make a recommendation each time bail is considered by the Court. All previous relevant behaviour, not just convictions, should be placed before the Court. Any objections raised by the prosecution and the Court's response should be accurately noted by all parties and on the court file.
Assuming the need for a remand you should first consider whether unconditional bail can be granted. Police officers may seek, or a Custody officer may have imposed, conditions which appear to you to be inappropriate or excessive. You should always enquire whether the risk of further offending, or of one of the other events mentioned in Schedule 1 to the Act requires conditions to be imposed at all.
In the case of an alleged offender appearing before the Court for the first time, the fact of the proceedings themselves may be sufficient to negate the future risk.
When dealing with bail hearings in court, prosecutors should ensure that the victim's view is considered.
Prosecutors are also reminded to ensure that victims are informed of bail decisions especially in cases involving 'vulnerable' and 'intimidated' victims and witnesses.
- Code of Practice for Victims of Crime
- CPS Direct Communication with Victims and Witnesses
- Care and Treatment of Victims and Witnesses
- Victim Focus Scheme: Guidance for Bereaved Families
In the case of imprisonable offences where the Prosecutor is required to have regard to one of the future risks, you should assess the "relevant considerations" set out in Schedule 1 to the Act .
Important considerations will include:
- Any history of offending, absconding or witness interference whilst on bail in the current or in previous proceedings
- Any express or implied intention to continue to offend, abscond or interfere and any apparent motive for the risk (for example, to obtain money for the purpose of drug purchases)
- The extent to which the defendant has continued to offend whilst subject to other Orders of the Court, such as suspended or deferred sentences and conditional discharge, and to any relevant breach proceedings in respect of other sentences; the presence of one or more of the features may demonstrate an unwillingness or inability to comply with Orders of the Court;
- Any previous breaches of bail conditions in earlier or concurrent proceedings or, in the case of absconding, failures to surrender to custody (including failure to appear at a police station when on "street bail"?);
- Any evidence of violence or threats towards, or undue influence over, the victim of the crime or other vulnerable witnesses;
- The degree of temptation to abscond;
- Any factors which might affect the defendant's ability to comply with bail conditions, such as drug or alcohol dependency. Care must be taken, however, with mentally disordered offenders to ensure that the risks of the future events are reduced in a way most compatible with their proper care and treatment (for example by diversion to a recognised medical treatment scheme or by a remand on bail to an appropriate probation or medical facility); and
- The effect that the seriousness of the proceedings and the likely penalty of conviction may have upon the defendant; generally speaking, the more serious the offence and the higher the likely penalty, the stronger will be the need to guard against one of the future risks.
Imprisonable Summary Offences
Amendments to the Bail Act 1976 introduced by Section 52 and Schedule 12 of the Criminal Justice Act 2008 restrict the grounds on which bail may be withheld from a person who is charged only with an imprisonable summary offence (or a relevant low-level criminal damage offence). The restrictions came into force on 14 July 2008.
The grounds for refusing bail are set out in Schedule 1 to the Bail Act 1976. Before amendment, the schedule distinguished between imprisonable offences (Part I of the Schedule) and non-imprisonable offences (Part II). The grounds on which bail could be withheld in relation to non-imprisonable offences were more limited than those which applied to offences which could attract a sentence of imprisonment. This distinction reflected the view that, in the absence of special justification, a person should not be remanded in custody in connection with an offence for which, ultimately, they could not be imprisoned.
Schedule 12 to the 2008 Act inserted a new Part IA into Schedule 1 which extended the restrictions on withholding bail to summary only offences which are imprisonable. The changes do not apply to either-way or indictable only offences.
Part 1A applies to imprisonable summary-only offences similar restrictions to those that previously applied only to non-imprisonable offences (see Part II of the Bail Act 1976), namely:
The defendant need not be granted bail if:
- It appears to the court that, having been previously granted bail in criminal proceedings, he has failed to surrender to custody in accordance with his obligations under the grant of bail; and
- the court believes, in view of that failure, that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody;It appears to the court that the defendant was on bail in criminal proceedings on the date of the offence; and
- The court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would commit an offence while on bail;
- If the court is satisfied that the defendant should be kept in custody for his own protection or, if he is a child or young person, for his own welfare;
- If he is in custody in pursuance of the sentence of a court or of any authority acting under any of the Services Acts;If having been released on bail in or in connection with the proceedings for the offence, he has been arrested in pursuance of section 7 of the bail Act 1976; and
- the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would fail to surrender to custody, commit an offence on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to himself or any other person).
In effect, the current distinction between summary non-imprisonable offences and summary imprisonable has been removed.
- Part 1A also creates three new grounds for refusing bail in summary only imprisonable offences (but not to offences which are not punishable by imprisonment):if it appears to the court that if released on bail, the defendant would commit an offence resulting in physical or mental injury to any person, or that it will put any person in fear of such injury;
- if the court does not have sufficient information to make the remand decision; orif the exceptions applicable to drug users in certain areas (as set out in Schedule 1 paragraphs 6A to 6C of the Bail Act) apply - see below.
Considerations regarding the imposition of conditions on bail have not been affected by these changes.
Paragraphs 6A to 6C of Part I of Schedule I of the Bail Act 1976 which set out the exceptions to bail for drug users under particular circumstances and in certain geographical areas continue to apply to imprisonable summary only offences.
Note that Part IA also applies to cases involving criminal damage where the court is clear that the value involved is less than £5000. These offences are treated for the purposes of bail as if they were summary only: see Section 22 of the Magistrates' Courts Act 1980.
Defendants aged 17 years are subject to the Bail Act but are not covered by the mode of trial provisions. In order to determine if the bail decision on a 17 year old defendant charged with an offence of criminal damage is brought within the provisions of the new Part IA, the court is required (by a new section 9A of the Bail Act) to consider (for the purposes of bail only) whether the value of any offence of criminal damage is less than £5,000.
Bail decisions taken by the police under the Police and Criminal Evidence Act 1994 are not affected by section 52 of the 2008 Act.
Sections 114 and 115 Coroners and Justice Act 2009, SI 2010 No.145 (c.18) came into force on 1 February 2010
Section 114 amends Schedule 1 to the Bail Act 1976.
Section 114(2) provides that bail may not be granted to someone charged with murder unless the court is of the opinion that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person. Furthermore section 114(3)(a) states that the court in deciding whether there is no such significant risk, must have regard to any relevant considerations as stated in paragraph 9 of Part 1 of Schedule 1 to the Bail Act 1976.
Section 114(3)(b) amends paragraph 9 in relation to bail decisions where the alleged offence is imprisonable and triable in the Crown Court. This section provides that, in deciding whether to grant bail in a case where the court is satisfied that there are substantial grounds for believing that the person would commit an offence while on bail, the court must have regard to the risk that such further offending would, or would be likely to, cause physical or mental injury to another person.
Where a person is charged with murder section 115 provides that bail can only be granted by a judge of the Crown Court. Section 115 applies to murder only. It does not apply to attempted murder or conspiracy to murder.
Note: the power of magistrates to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, is now removed.
The first hearing in the magistrates' court should progress as normal, save that there will be no consideration of the issue of bail. In most instances, the case will be sent to the Crown Court under section 51 of the Crime and Disorder Act 1998 but in some cases, the sending will be adjourned under section 52(5) of the 1998 Act.
Whether the case is to be sent under section 51 or adjourned under section 52, or where the case cannot be sent under section 51 because the accused is a youth at the end of the hearing, the legal adviser will arrange for the case details and appropriate paperwork to be passed to the court office for urgent resulting, so that the matter can be heard by a Crown Court judge within 48 hours.
To enable such cases to be listed expeditiously and to avoid the unnecessary attendance of the defendant at the Crown Court, the legal adviser will ask the defence representative whether there is any intention to make a bail application to the Crown Court in due course. The legal adviser can then advise the sitting magistrates whether they should require the presence of the defendant at the Crown Court hearing, as set out in the Interim Guidance issued by the Senior Presiding Judge for England and Wales on 2 March 2010.
Crown Courts may wish to agree local arrangements so that magistrates' courts fix the hearing, but this will only be possible if suitable judges (see below) are available.
Papers from the magistrates'/youth court will be placed before a Crown court judge authorised to hear murder trials or murder preliminary hearings, to decide if there should be a hearing and if the defendant should be produced. If no murder-ticketed judge is available, the list officer will refer the case to the Resident Judge.
The hearing/consideration of bail must be within 48 hours, beginning with the day after the day on which the magistrates send or refer the case (excluding Saturdays, Sundays, Christmas Day, Good Friday and Bank Holidays) The magistrates' court will have indicated whether the defendant should be produced for that hearing or not. Once the case is listed, the Crown Court should inform the parties of the hearing date in the usual way and the prison notified of that hearing date, and whether the defendant is to be produced or not. Defendants can appear before the Crown Court via Prison Video Link.
The new provisions also apply to youths, the majority of whom won't be dealt with under sections 51 or 52 (5) of the 1998 Act, but instead whose cases will be adjourned for committal.
Areas should ensure that arrangements for getting murder cases to the Crown Court for a section115 hearing are in place and that prosecuting advocates are familiar with these arrangements. The key point is that the Crown must be ready to deal with the section 115 hearing in the Crown Court. Irrespective of whether the hearing is to take place in chambers, the Crown will clearly have to be represented where there is a bail application. Even if there is no application by the defence, the Crown will need to assist the judge with information to establish a legitimate reason for withholding bail.
For further information, please see HMCTS Guidance and JCS Guidance
Court Conditional Bail
Recommended bail conditions and the reasons for such conditions should be specific and justifiable. The conditions must be likely to be effective and capable of being enforced.
Some bail conditions, for example a condition to report to a Police Station at designated intervals, might be superficially appealing but be of little or no effect in averting the risk contemplated. For example, the interval between reporting times may be insufficient to prevent a defendant absconding. In such cases the conditions ought not to be recommended.
It was held in R (CPS) v Chorley Justices  EWHC 2162 Admin that a doorstep condition is not contrary to the ECHR. Where it is proportionate and necessary to enforce a curfew or a residence condition imposed for one of the statutory purposes then such a condition may be appropriate.
In prosecutions for murder, you should remind the Crown Court granting bail (see section 115 Coroners and Justice Act 2009) that it must impose conditions in accordance with Section 3(6A) of the Act (Archbold 3-10) so as to ensure the medical examination of the defendant. The Court need not impose the conditions if it is content that satisfactory reports have already been obtained. However see also section 114 Coroners and Justice Act 2009 where the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing whilst on bail an offence that would cause physical or mental injury to any person.
In appropriate circumstances you may also wish to remind the Justices that it may be in a defendant's own interests to be committed in custody to enable a report to be prepared by a prison doctor. (R v Vernege (1982 1 All ER 403(n)).
Whatever recommendation you make on the subject of bail you will bring all relevant matters to the attention of the Court whose responsibility it is to decide whether or not bail should be granted.
Electronic tagging for Adults
The Criminal Justice and Immigration Act 2008: Sections 21, 22, 23, 51 and Schedules 6 and 11 (in force 3 November 2008).
The Criminal Justice and Immigration Act 2008 (the 2008 Act) has made the following changes to the law concerning electronic monitoring (tagging):
- Sections 21 to 23 provide that a defendant who has been subject to electronic monitoring (EM) as a condition of bail for an offence for which he receives a custodial sentence may receive a credit period which counts as time served by him as part of the sentence; and
- Section 51 and Schedule 11 amend the Bail Act 1976 to recognize electronic monitoring (EM) as a condition that can be imposed when granting bail to adults.
Sections 21 and 22 insert a new section 240A into the Criminal Justice Act 2003. It provides that a court must direct that the period for which a defendant was subject to a curfew condition and an electronic monitoring condition, to count as time served by the offender as part of the sentence.
This means that the court must first determine whether there has been a 'qualifying' period of EM or tagged bail. Once this has been decided, the credit towards the custodial sentence will apply unless one or more of the conditions in subsection (4) applies (see below).
- This provision applies only wherea court sentences an offender to imprisonment for a term in respect of an offence committed on or after 4th April 2005;
- the defendant was remanded on bail by a court in course of or in connection with proceedings for the offence, or any related offence, after the coming into force of section 21 on 3 November 2008; and
- the offender's bail was subject to a qualifying curfew condition and an electronic monitoring condition.
The credit period is the number of days represented by half of the sum of the number of days on which the offender is subject to an electronically monitored curfew of at least nine hours per day. The day on which the conditions are imposed is counted but the last day is excluded because it counts as the first day of the sentence.
Note: No credit period is available for monitored curfews which are less than 9 hours.
- Subsection (4) (a) of section 240A provides that the Secretary of State may make rules to dis-apply the credit provision. The current rules namely the Remand on Bail (Disapplication of Credit Period) Rules 2008 provide that credit is not to be given forsentences of imprisonment for consecutive terms;
- sentences of imprisonment for terms which are wholly or partly concurrent;
- periods during which a person granted bail subject to the relevant conditions is also subject to electronic monitoring required by an order made by a court or the Secretary of State (e.g. a curfew order).
Subsection (4) (a) states that the court may decline to make a credit direction it is in the opinion of the court just in all the circumstances not to give a direction under that subsection. This will enable the court to, inter alia, not to give credit to all or part of the credit period when the defendant was in breach of bail. Under subsection (5), a court may nonetheless direct that a period of days which is less than the credit period is to count as time served by the offender as part of the sentence.
The court must state in open court:
- the number of days on which the offender was subject to the relevant conditions, and
- the number of days in relation to which the direction is given.
Where the court does not give a direction that credit is given or directs that reduced credit is given, it must state in open court:
- that its decision is in accordance with rules made under subsection (4)(a) or
- that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.
Calculating the credit period
The court which first imposes the electronically monitored curfew will commence a paper record which documents the conditions imposed and the date on which they are imposed. The document will also carry information about breach of bail and information to do with the dis-application provisions. This form will travel with the defendant's court file so that it is made available to the sentencing court.
The credit provisions and hence the credit period commences when bail is granted after section 21 comes into force. The credit period for a defendant granted bail with conditions of monitored curfew before the commencement date will therefore start when he is re-bailed with these conditions on or after the commencement date.
Offences committed before 4 April 2005
Section 23 and Schedule 6 contain parallel provisions in respect of offences committed before 4 April 2005.
Electronic monitoring (EM) has been in use as a condition of bail for some time. The legal basis for EM for children and young persons is provided by section 3AA of the Bail Act 1976. For adult offenders, the legal basis is the court's general powers to grant bail subject to a condition pursuant to section 3(6) of the Bail Act.
A new Section 3AB of the Bail Act 1976 sets out the conditions that must be satisfied before the Courts can impose electronic monitoring on adults and those aged 17. One of these is that the Court must be satisfied that without the electronic monitoring the defendant would not be granted bail. This is intended to ensure that tagging is only used where necessary and to support the proper use of public funds.
It should be noted that section 51 and Schedule 11 bring the legal basis for monitoring adults in line with that for young offenders. Prior to this EM for adults had been imposed without the need for legislative change. Please note that the amendments do not amount to a concession that the court had no power to impose EM on adult offenders until section 51 comes into force on 3 November 2008.
For information on electronic tagging for youths please refer to Youth Offender: Remands with Security Requirements/Remand Centres (see below).
A Remand in Custody
A remand in custody should only be sought where it is needed, i.e. where there are substantial grounds for believing that one of the future risks will occur and either:
- There are justifiable grounds for believing that the defendant will not comply with bail conditions;
- Or the defendant has demonstrated that he or she cannot or will not comply with them;
- Or there are justifiable grounds for believing that the defendant will commit one or more of the future risks regardless of the conditions imposed.
Where a Prosecutor has decided to recommend a remand in custody to a Magistrates' Court in a case to which the BAA applies, he or she must then go on to consider whether an appeal would be appropriate in the event that the Court decides to grant bail. The recommendation must be clearly endorsed on the file.
Note the effect of Section 25 Criminal Justice and Public Order Act 1994 (Archbold 3 - 55) for defendants charged with murder, attempted murder, manslaughter, rape, attempted rape, or other sexual offences as detailed in section 25(2) as amended by paragraph 32 of Schedule 6 to the Sexual Offences Act 2003.
When opposing bail in a case where Section 25 applies the Court's discretion should not be fettered by representations from the prosecution that confer an unduly restrictive interpretation of "exceptional circumstances" under Section 25, which imposes an obligation to withhold bail.
The requirement for a court to be satisfied that "exceptional circumstances" exist before granting bail where section 25 applies does not of itself violate Article 5 of the ECHR. (R (O) v Harrow Crown Court  EWHC 868 (Admin)) (Archbold 3 - 55)
Bail Information Scheme
Frequently for those most at risk of a remand in custody a place might be available in a probation or other approved bail hostel. Detailed information might also be provided under a recognised Bail Information Scheme. Residence in an approved hostel and compliance with its rules will often assist to reduce the future risks.
You should still take care to ensure that the proposed hostel and its regime are an adequate safeguard to the risk posed by the defendant in each case. If, considering all the circumstances, it is felt that the future risk is not significantly reduced by residence at the hostel, then it may still be appropriate to recommend a remand in custody.
Provision of Bail Accommodation and Support Service for Defendants
The Ministry of Justice awardED the new BASS contract to Stonham from 18 June 2010. BASS allows courts and prison governors to make greater use of bail and early release in appropriate cases where potential users do not have an address.
Stonham is a registered housing association and is England's largest provider of housing and support for vulnerable and socially excluded people, delivering services to over 20,000 people a year.
Prosecutors are requested to note the service is there to accommodate the following:
- Remanded in Custody: prisoners who have already been remanded in custody but who the courts may decide to bail if provided with suitable accommodation and/or support.
- Home Detention Curfew: prisoners serving custodial sentences of 3 months to less than 4 years and who are eligible for release on Home Detention Curfew and who prison governors may agree to release if provided with suitable accommodation and/or support.
- Defendants in Court: those appearing in court whom the courts would remand in custody unless they are provided with suitable accommodation and/or support.
Note: If the defendant falls into one of the above categories, then he or she can only be considered for the Bail Accommodation Support Service where he/she
- has no other reasonable address option available which would be acceptable to the Court or the Prison Governor;
- is likely to have an eligibility to receive housing benefit, or can pay for the rent.
Although the CPS supports this initiative, Prosecutors should scrutinise bail applications carefully. The court should be informed if the accommodation offered does not address the concerns of the prosecution, for example if the address offered is close to the victim.
Prosecutors should also consider whether the court should impose a condition of electronic monitoring to help ensure that the defendant remains at the given address at appropriate times.
It is suggested that prosecutors add the following to the standard conditions:
- to abide by the conditions of residence as stipulated by Stonham; and
- to attend contact/support sessions as stipulated by Stonham.
A potential service user will be identified by the court or through the Bail Information Scheme and a request will be made to Stonham for support or accommodation with support in locations nominated by Regional Offender Managers across England and the Director of Offender Management in Wales.
Stonham will designate an address and/or suggest to the court an appropriate support plan within two working days. This will form a proposal to be submitted to the Bail Information Officer. This, together with risk and needs analysis is the information upon which a court will make a decision to release the service user into the scheme.
Upon approval of the court, a service order will be activated. Service users will be allocated a Stonham property and/or a Support Officer to ensure compliance with bail conditions. The service user will remain with the scheme for the period of their bail, and up to seven days afterwards if necessary, unless sentenced to custody or re-remanded.
Stonham have a number of responsibilities which are to:
- consult with police at local level about the location of premises to be used as bail accommodation;
- ensure that neighbours know that Stonham are managing the properties and have the appropriate contact details in case of any concerns or problems;
- monitor the behaviour of service users and give formal warnings as necessary;
- remind defendants to attend court and other appointments;
- initiate formal breach action through the police in accordance with agreed standards should the service user
- fail to arrive at the address;
- abscond from the address;
- fail to attend contact sessions;
- fail to engage with the support at those sessions;
- breach a curfew or other bail condition; or
- behave in such a way that the contractor decides to terminate the service provision
Exception to the Right of Bail: Defendant on Bail at time of alleged offence
Different considerations apply to applications for remands in custody based upon paragraphs 2A to 6 of Schedule 1 to the Act . Paragraph 2A provides that a defendant need not be granted bail if the offence for which the defendant is before the Court is an indictable offence or an offence triable either way and it appears to the Court that the defendant was on bail in criminal proceedings on the date of the offence.
The Law Commission Report on Bail and the Human Rights Act 1998 (number 269) concluded that the facts specified in paragraph 2A cannot in themselves constitute a ground for detention under the Convention, they can only be a relevant factor in weighing the risk of the defendant committing an offence whilst on bail. The Law Commission recommended that the Bail Act be amended to make this plain.
Good practice has always meant that reliance should not be placed directly on paragraph 2A when opposing bail. Prosecutors should not open an objection to bail by saying that the defendant has lost his or her right to bail simply by virtue of paragraph 2A being made out. Instead, Prosecutors should rely on the paragraph 2A considerations by reference to the exceptions to right to bail contained in section 2 (1)(a),(b) and (c) and may use the defendant's antecedent history or other evidence in support of their application.
Paragraph 2A as substituted by section 14 of the Criminal Justice Act 2003 (applies to offences committed on or after 2007) provides that a defendant who is 18 or more and was on bail at the time of the alleged offence may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence while on bail (whether subject to conditions or not). At the same time, by virtue of paragraph 9AA in Part I of Schedule 1, the court will be required when reaching its decision to give particular weight to the fact that the defendant was on bail at the time.
The exceptions whichexceptions that apply to applications for remands in custody for non-imprisonable offences (see Part II of Schedule 1) are not the same as those which apply in relation to imprisonable offences (Archbold 3 - 51).
In the case of absconding, paragraph 2 of Part II of Schedule 1 provides that the defendant need not be granted bail if he was previously on bail and failed to surrender to custody and the court believes, in view of that failure, that he would fail to surrender.
Where the defendant has been arrested under section 7 of the Bail Act 1976 and the court is satisfied that there are substantial grounds for believing that he would fail to surrender, commit further offences, interfere with witnesses or obstruct the course of justice, it need not grant bail: paragraph 5 of Part II of Schedule 1.
Lack of Information
You should bear in mind the power of the Court under paragraph 5 of Schedule 1 to the Act to grant a short custodial remand if there is not enough time to obtain sufficient information for the Court to make its decision. This would not amount to a "decision not to grant the defendant bail" within the meaning of Part IIA of Schedule 1: (R v Calder Justices ex parte Kennedy (1992) Crim LR 496).
The Law Commission Report on Bail and the Human Rights Act 1998 concluded that refusal of bail by a Court because of lack of information under paragraph 5 of Part 1 of Schedule 1 of the Act can be compatible with Article 5 of the Convention provided that detention is for a short period, which is no longer than necessary to enable the required information to be obtained, and the lack of information is not due to a failure of the Prosecution, the Police, the Court or another state body to act with "special diligence".
When an application is made under paragraph 5, Prosecutors should ensure, where they can, that missing information is obtained as quickly as possible. This should be done through oral and written communication with the Police or other body from whom the information is awaited. If the information is received before the adjourned hearing date, the Prosecution should contact the Court and the Defence Solicitors to advise that a full bail hearing can now take place, so that the adjourned hearing can be brought forward.
The Application in Court
Prosecutors are responsible for opposing bail in Court. It is not necessary to call evidence in support of a custody application since the strict rules of evidence do not apply. Previous convictions should be handed in to the Court, but not read out (R v Dyson (1943) 29 Cr App R 104).
In most instances you should not find it necessary to call a Police officer in support of the application. You may find yourself under pressure from the Court or the Defence to call a witness in support of your application. The decision to call a witness is entirely a matter for your discretion. You should consider carefully what additional information may be gained from calling the officer in the case and whether it is genuinely relevant to the application.
Under no circumstances should an officer called to give evidence in connection with a bail application be forced to say things in the witness box which may prejudice the course of the investigation.
It is possible to use non-forensic evidence, i.e. the results of an in station test kit, for the purpose of making representations as to remands in custody or conditional bail.
Prosecutors are instructed no longer to consent to technical bail at magistrates' court or Crown Court hearings to avoid what might otherwise be considered unnecessary and wasteful remand hearings.
Historically, bail can be granted to a defendant although there are substantial grounds under the Bail act 1976 to remand him into custody. The reasons for granting bail may often include the fact that he is either serving a custodial sentence, or is remanded in custody for other matters before the same or other courts. Unconditional bail under these circumstances is said to be technical because the defendant remains in custody for other reasons. Technical bail has avoided the need to bring the defendant back to court unnecessarily for interim remand hearings. In the case of defendants who are remanded for other matters, it avoids the need for CPS to monitor more than one set of custody time limits.
There are however risks associated with technical bail. If the defendant is released from his sentence or custodial remand before the conclusion of the proceedings for which technical bail is granted, a person who by implication is likely to re-offend and/or who is likely to abscond will be released into the community without even the safeguards offered by conditions of bail being in place.
The risks are heightened in cases where the defendant is subject to recall to prison because the recall process can be lengthy, and it may not always be clear whether the defendant has been recalled for his original offence(s) when technical bail is being considered for the later matters. Furthermore, a decision to recall may be successfully challenged before the conclusion of the criminal proceedings.
Public safety and public confidence in the criminal justice system must not be compromised by administrative convenience. While the decision to grant bail is ultimately for the court, prosecutors need to minimise the risk of defendants, that represent a risk to the community, being released on unconditional bail simply for administrative reasons, and to reduce unnecessary transportation.
In a case where you are satisfied that one or more grounds for withholding bail has been made out, you should not agree to technical bail and you should object to it where necessary.
In objecting to bail, you may wish to argue that:
- a defendant need not be granted bail if he is in custody in pursuance of the sentence of a court or of any authority acting under any of the Services Acts (see Schedule 1 Part I paragraph 4, Part IA paragraph 6 and Part II paragraph 4 of the Bail Act 1976) ;
- the use of remands by prisoner to court video link (PCVL) will avoid the need to transport the defendant;
- there is no guarantee that defendants who are remanded in custody on other matters or who are serving prisoners would not be released before the conclusion of the instant proceedings.
In a case where you are satisfied that no ground for withholding bail has been made out, you should, as with any such case, agree unconditional or conditional bail where appropriate. This situation will be rare as the defendant is already in custody. Your reasons for adopting this course of action should therefore be recorded fully on the file.
Variation of conditions/imposition of conditions
Where a custody officer grants conditional police bail under Part IV of PACE, or varies conditions of bail, the person may apply to the Magistrates' Court for bail or for variation of the conditions. The court has power to grant or withhold bail, with or without conditions, including conditions which are more onerous than those imposed by the custody officer (s 43B MCA 1980). Rule 84A of the Magistrates' Courts Rules 1981 applies to the application made by the person.
Where a defendant applies to the Magistrates' Court to vary conditions of bail imposed by the Police, the Court will fix a hearing date and notify the CPS. (Courts must hear the application within 72 hours of its receipt - not counting Christmas Day, Good Friday, Bank Holidays or Sundays.)
If the CPS has already received a file from the Police you should ask the Police to give their view of the application.
If the CPS has not already received a file, you should request a file from the Police. The Police will supply either the appropriate Manual of Guidance file
Where a court has granted bail, you may apply to the Magistrates' Court (or, where a person has been committed to the Crown Court for trial or sentence, to the committing Court or to the Crown Court):
- for conditions of bail to be varied or
- for conditions to be imposed where unconditional bail was granted (section 3(8)(b)).
The accused may apply also (section 3(8)(a)).
Rule 19 Criminal Procedure Rules 2005 applies (Archbold 3-181, 184).
The Criminal Procedure Rules (CPR) governs the practice and procedure to be followed and applies to all cases in the magistrates' court and the Crown Court and to all cases in the criminal division of the Court of Appeal, unless otherwise stated.
Rule 19 of the CPR pertains to bail in the magistrates' court and the Crown Court. See CPR website
Rule 19 has been amended and came into force on 6 April 2009. These changes are introduced by Rule 7 of these Amendment Rules.
Prosecutors' attention is drawn specifically to the following sections:
Rule 19.1 (Application to a magistrates' court to vary conditions of 'police' bail) is widened by the removal of the specific reference to police bail. This Rule now applies to all applications to vary the conditions of bail whether imposed by the police or previously by the court.
Rule 19.1(1) is amended to show that an application under section 47 (1E) of PACE 1984 is specifically relevant to applications to vary the conditions of bail.
Rule 19.1(1)(f) is added to require that the defendant must specify in his written notice of application the address at which he would reside if the court were to impose a condition of residence.
Rule 19.1(3) is amended to require that notice of the hearing be served by the court officer on the applicant, the prosecutor (or the police if prior to charge) and on any surety not less than 24 hours before the hearing.
Rule 19.1(5) is inserted so that on an application to vary court granted bail, the applicant must serve a notice of application on the court officer and the other party not less than 24 hours before the hearing; and that the notice of application must specify the variation required or the conditions to be imposed and must explain the reasons for the variation or the conditions.
Rule 19.1(7) is inserted to give the court power to vary or waive the time limits under Rules 19.1(3) or (5); and to allow the notice of application to be in a different form from the form specified in the Practice Direction or for the notice to be given orally.
Rule 19.25 is added to introduce into the magistrates court and the Crown Court a requirement for the defendant to give notice of the address at which he or she would reside if the court was to grant bail with a 'condition of residence'.
In particular, Rule 19.25(1) places a requirement on the defendant to notify the prosecutor of the address at which he would reside if released on bail with a condition of residence as soon as practicable after the institution of proceedings, and as soon as practicable after any change of address.
Rule 19.25(2) specifies that the prosecutor must help the court to assess the suitability of a proposed address. This is to place on a firm footing that the court should take representations from the prosecution; specifically by the police, into account when taking a decision; or to adjourn the proceedings while the prosecution is conducting an investigation into the suitability of an address.
Defence right of appeal against imposition of conditions by magistrates
An accused may appeal to the Crown Court against the imposition of certain bail conditions by magistrates (section 16 Criminal Justice Act 2003). Those conditions are: a residence requirement (other than a requirement to reside at a bail hostel or Stonham accommodation); provision of a surety or giving a security; curfew; electronic monitoring or a non-contact requirement. Before the accused can exercise this right, the magistrates' court must have had an opportunity to reconsider the conditions. This could have been where the accused applied for conditions to be varied (under section 3(8)(a)), or because the prosecutor or police applied for conditions to be varied (under section 3(8)(b)), or because the prosecutor applied for reconsideration of the bail decision under section 5B(1).
Rules 19 and 20 Crown Court Rules 1982 apply (Archbold 3-181, 3-184).
The Police (Detention and Bail) Act 2011 has amended PACE to make it clear that any periods spent by an arrested person on police bail shall not be counted when calculating the total period of time spent by an arrested person in police detention before charge. This has had the effect of overturning the ruling of the single judge in the Administrative Court in R. (Chief Constable of Greater Manchester Police) v. City of Salford Magistrates' Court and Hookway  EWHC 1578 (Admin) (CLW 11/24/3) (19/05/2011)
This Act applies retrospectively.
Prosecution Application to Reconsider Bail: Section 5B Bail Act 1976
The Prosecution may apply under Section 5B of the Act to have bail reconsidered by the magistrates' court. This only applies to bail granted by the magistrates' court or a constable and only in relation to offences triable on indictment or either way. (Archbold 3 - 26).
The Prosecution may apply to:
- Vary the conditions of bail;
- Impose conditions in respect of bail which has been granted unconditionally, or
- Withhold bail.
You may only apply on the basis of information which was not available to the Court or Constable when the original decision was taken. It is unclear whether information which a Constable (in practice, a custody officer) should have known or could reasonably be expected to have known will be treated by the Courts as not having been available. In the absence of case law, you should treat such information as not having been available to the Constable.
If the information is withheld from the court (for example by the Police or the CPS), then it was not available to the court, unless someone else tells the Court. A Section 5B application could be made in these circumstances although the court will want to consider whether it is fair to take account of information which could or should have been given when the original decision was taken.
You should not withhold information from the court with a view to using it to support a Section 5B application later.
The new information need not relate directly to the offence but may relate to matters such as the defendant's criminal record, or his or her address in relation to the complainant's address.
It is not necessary to use Section 5B to ask the magistrates' court to reconsider bail when the defendant is already present at court in answer to bail. In other words, Section 5B is not the only provision available to the court to allow it to reconsider bail. The court still has a duty to consider bail every time the defendant appears before it.
Where the CPS has already received a file from the Police, the Police will supply information on the relevant Manual of Guidance form and suggestion that a Section 5B application be made. Where the CPS has not yet received a file from the Police (for example where the defendant has only recently been charged and bailed), the Police will submit either a custody remand file or the appropriate Manual of Guidance National file Standard, file, together with information supporting a proposed Section 5B application.
Where the CPS receives information from a source other than the Police which may justify a Section 5B application, you should provide details to the Police and request the Police view. Where the CPS has not yet received a file from the Police, you should request a file. The Manual of Guidance gives details of the forms and procedures to be used.
You should consider the following when deciding whether to use Section 5B:
- The length of time since the original decision and the bail history since that decision;
- The length of time before the defendant would next appear in Court if no applications were made;
- Whether the original decision would have been different if the new information had been available then (or if the new circumstances had obtained them);
- Whether, even if the original decision would have been different, a different decision is likely to be taken now.
If you decide to proceed with a Section 5B application, you must apply in accordance with Rule 93B of the Magistrates' Courts Rules. (Archbold 3 - 166a)
You must make the application to the magistrates' court which granted bail or in the case of bail granted by a Constable, the "appropriate" court. The appropriate court is the one appointed by the Custody Officer as the court before which the person granted bail has a duty to appear, or, if no such court has been appointed, the court acting for the petty sessions area in which the Police Station at which bail was granted is situated.
The application must:
- be in writing;
- contain a statement of the grounds on which it is made;
- specify the offence in respect of which bail was granted;
- specify the decision to be reconsidered, including any bail conditions and the reasons for them having been imposed;
- specify the name and address of any surety.
You must send the application to the Clerk of the Court. A hearing date will be fixed by the Clerk which must be not later than 72 hours after receipt by the Clerk of the application (not counting Christmas Day, Good Friday, Bank Holidays and Sundays).
Responsibility for service of notice on the defendant lies with the Court.
The application may proceed in the absence of the defendant provided that it is proved (on oath or by certificate of service) that the defendant has been served with notice.
You should always assess the quality of persons who are presented to the court as sureties, seeking assistance from the Police wherever necessary. Where appropriate, the previous convictions of a proposed surety should be brought to the attention of a court. Particular care should be taken to ensure that the potential sureties are genuinely able to afford in their own right the sums for which they are making themselves liable. If the court and the Defence do not fully explore the status and means of the potential surety, the Prosecutor should do this in the interests both of justice and the surety.
Where the court is considering whether a surety should forfeit all or part of his or her recognisance you should be prepared to assist the court with the history of the matter and, if necessary, the relevant law.
Where a magistrates' court imposes a requirement for a security, when the defendant surrenders to the Crown Court, for arraignment or otherwise, the Crown Court must consider the suitability of bail conditions afresh, including the desirability of a surety. (Archbold 3 - 30) (R v Maidstone Crown Court ex parte Jodka (1997) 161 JP 638).
If a defendant on bail has not surrendered to the custody of the court but has been formally arraigned, the surety will not be liable to forfeit any part of his or her recognisance if the defendant subsequently absconds. The arraignment will constitute his or her surrender to custody and cause the defendant's bail to lapse: (R v Central Criminal Court ex p Guney  AC 616).
Where there is a risk that a defendant may leave the jurisdiction you should draw the Court's attention to its powers to require a security from the defendant under Section 3(5) of the Act (Archbold 3 - 9).
Securities should always be held by the court unless, in exceptional circumstances, the court wishes them to be held by the Police.
It is unacceptable for the CPS and its officers to be placed in a position of holding the defendant's funds on trust.
Section 19 Criminal Justice Act 2003 Drug Users: Restriction on Bail
Section 19 Criminal Justice Act 2003 imposes a restriction on bail if a defendant has tested positive for class A drug on charge and has agreed to undergo a 'relevant assessment' at the first bail hearing. If the person agrees, then they may be granted conditional bail with a condition to undergo the relevant assessment and any prescribed follow up. If not, the presumption for bail is removed and the court need not grant bail unless the court is certain that the person will not re-offend when on bail.
Section 19 applies when a defendant:
- is aged 18 or over; and
- has tested positive for a specified class A drug (namely heroin, cocaine or crack cocaine) either:
i) under Section 63(B) of PACE 1984 (drug testing after charge) in connection with the offence; or
ii) under section 161 of the Criminal Justice Act 2003 (drug testing after conviction of an offence but before sentence); and
- resides in a relevant Petty Sessions Area where the provision applies. (If the person is of no fixed abode, then it is open to the court to deal with that person as if he is a resident of the area in which he was arrested); and
- where the defendant has been charged with an offence under sections 5 (2) or 5 (3) of the Misuse of Drugs Act 1971 (possession/possession with intent to supply) relating to a specified class A drug; or
- where the defendant has been charged with an offence which the court is satisfied was caused, wholly or partly, by the defendant's misuse of a specified class A drug or was motivated, wholly or partly, by his intended use of a specified class A drug.
If a defendant falls within the criteria above and:
- has either been offered an assessment, to which he agrees; or
- following an assessment has had relevant follow-up proposed to him, and he agrees to participate in the relevant follow-up;
the court, if it grants bail, has a duty to impose as a condition of bail that the individual undergo the assessment and/or participate in any relevant follow-up.
The court may not grant bail unless it is satisfied that there is no significant risk of his committing an offence whilst on bail (whether subject to conditions or not) if the defendant either:
- refuses to undergo an assessment of their dependency on or propensity to misuse class A drugs; or
- having undergone such an assessment, and having had follow-up action proposed to address their dependency/propensity, refuses to undergo such follow-up.
Where an offer of assessment has previously been made to the defendant which was refused, it is open to the defendant to reconsider his refusal at the time of the bail hearing and accept the offer of assessment made. It will also be open to the court to ask the defendant at the time of the bail hearing whether he wishes to reconsider his refusal to undertake an assessment, and to inform him of the possible consequences of such a refusal.
In any individual case, the court's decision on bail will be based on the likelihood of a significant risk of re-offending - if the court considers there is no significant risk, the conditions will not be applied. Similarly, if the defendant is considered a bail risk for reasons other than offending whilst on bail, then the section will not apply.
It is important to note that the effect of section 18 is that a court must refuse bail if the defendant is unwilling to undergo an assessment and any relevant follow-up to address their drug misuse - unless it is satisfied that there is no significant risk of re-offending by the defendant whilst on bail.
For the provision to apply, there must be evidence of a positive drug test for a specified class A drug, and substantial grounds for believing that the misuse of a class A drug caused or contributed to the offence, or that the offence was motivated wholly or partly by the intended use of a class A drug.
The combined evidence of a positive test and trigger offence amounts to 'substantial grounds for believing' that the offence was motivated wholly or partly by the intended use of a class A drug. Prosecutors must ensure that the issue is raised and advocate the application of section 18, and place before the court all relevant information.
If a defendant test positive but disputes the result, a sample will be sent for confirmatory testing. This will usually take 72 hours, therefore, a court might not have the confirmed result when the defendant first appears. In such cases, the court should be informed of the disputed result and it must then decide whether to proceed on the basis of the disputed result, or adjourn until the confirmatory test has taken place.
Under section 4(2) there is no general right to bail for convicted persons.
However where a person has been convicted and is then brought before either the magistrates' or Crown Court to be dealt with for breach of requirements of a community order or breach of a certain youth community orders (section 4(3); or a court adjourns a case for inquiries or a report (such as a pre-sentence report) to be made in order to assist the court in dealing with the offence (section 4(4)), the right to bail remains. Accordingly, you should make appropriate representations (including any objections) as to the grant of bail.
By inference the presumption to bail does not apply to those defendants who appear before a court post-conviction where proceedings are adjourned for any other reason for example committal for sentence.
In this situation, prosecutors are reminded of their duty to assist the court in providing information that may be relevant to their decision. For example, relevant case decisions that highlight the fact that it is difficult for magistrates to justify granting bail to a defendant in these circumstances.
- On committal to the crown court for sentence: R v Coe (1968) 53 Cr App R 66
- Pending appeal against sentence to the Court of Appeal: R v Watton 68 App R 293
Committal for Trial
You should be aware that although the fact of a committal taking place does not give a defendant an automatic right to a further bail application, there may be factors disclosed on the face of the papers which might provide fresh material.
When reviewing the National file standard upgrade file for committal you should consider whether there is any relevant information to place before the Court that may amount to a change in circumstances. If so, the file should be endorsed with the appropriate instructions and recommendations.
Where a magistrates' court commits a person for trial on bail, the bail ceases (whatever form of words is used in the magistrates' order) when the defendant surrenders to the Crown Court, whether for the purposes of arraignment or otherwise. If the Crown Court releases the defendant on bail thereafter, it must consider the suitability of any conditions afresh, including the position of a surety.
There is a clear distinction between a failure to appear at Court in answer to Police bail and a failure to answer bail imposed by a Court.
Where a person fails to answer Police bail, proceedings must be commenced within six months of the alleged failure to answer bail, or within three months of the person surrendering to custody or being arrested or brought before a court for the Bail Act offence or the offence for which he was granted bail. It is important to ensure that local Police stations have satisfactory arrangements for the laying of an information within the six month time limit. The decision to continue any charge preferred by the Police under Section 6 of the Act should be made by the Prosecutor.
Where the defendant has failed to answer Court bail, the decision as to whether proceedings should be brought is for the Court. There is no limit for pursuing the matter (Archbold 3- 27, 3-31).
Where a decision has been made to pursue a charge of failure to surrender to bail, you will have to consider whether in all circumstances it is appropriate to recommend to the Court a remand in custody or bail with stringent conditions. In addition to considering the nature of the alleged offences and any other information concerning the defendant, if the failure to surrender relates to Court bail, you should ensure that you have all the relevant information regarding the failure to answer bail.
Where the defendant is arrested on warrant and brought before a Court other than the one which originally granted him or her bail, the Prosecutor handling the case in the second Court must not allow the defendant to be dealt with unless either he or she has the prosecution file for the original offence or has spoken to a Prosecutor from the original office who is in possession of all the information which the second Court may require in considering the question of bail or custody.
The same guidance applies where the defendant is arrested for breaching bail conditions or lack of sureties and appears before a Court other than the one which originally granted him or her bail.
Youths and Youth Courts
The question of remands will only arise where an adjournment is sought and therefore the first point to consider is whether or not the adjournment is necessary. You should remember the necessity of dealing with youth offenders in an expeditious manner.
If an adjournment is necessary, you should then go on to consider what recommendations you will make to the Court regarding bail.
The Bail Act 1976 also applies to youth offenders. There is a presumption that the defendant has a right to bail.
The court must also have regard to the welfare of the youth (section 44 Children and Young Persons Act 1933). This includes a specific obligation to consider a bail application, even if the court has refused bail twice and there is no change of circumstances nor any considerations which were not before the court when the youth was last remanded (R (on the application of B) v Brent Youth Court  EWHC 1893 Admin). Prosecutors should be mindful of their corresponding duty to have regard to the interests of the youth and the principal aim of the youth justice system which is to prevent offending (section 37 Crime and Disorder Act 1998), when considering representations in respect of bail.
The best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies: Article 3 United Nations Convention on the Rights of the Child 1989 (UNCRC).
Article 37(b) UNCRC provides that:
No child shall be deprived of his or her liberty unlawfully or arbitrarily.
The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used as a measure of last resort and for the shortest appropriate period of time.
These principles apply to all youth offenders in England and Wales, irrespective of age as s1UNCRC provides that:
A child means every human being under the age of 18 years, unless under the law applicable to the child, majority is attained earlier.
The Bail (Amendment) Act 1993 also applies to youth offenders charged with, or convicted of, offences punishable (in case of an adult) with five years or more imprisonment or offences under Section 12 and 12A Theft Act 1968 and in respect of whom the Prosecutor has made representations that he or she should be remanded under the provisions of Section 23 Children and Young Persons Act 1969 as amended (Archbold 3-86, 3-87, 3-69).
The right of appeal applies to bail granted following a Prosecutor's representations for a remand to local authority accommodation (including a secure remand to a secure children's home or secure training centre) remand centre or prison.
As well as being approved by a lawyer of Level E or above, the decision to appeal the granting of bail should be taken or confirmed by a Youth Offender Specialist and the Area Youth co-ordinator should be notified of the result of the appeal.
Youth Offender: Remands
The question of remands will only arise where an adjournment is sought and therefore the first point to consider is whether or not the adjournment is necessary. You should remember the necessity of dealing with youth offenders in an expeditious manner.
If an adjournment is necessary, you should then go on to consider what recommendations you will make to the Court regarding bail.
Youth Offender: Bail
The court may impose conditions that appear to be necessary for the same reasons as adults save that the court may also impose a condition "for his own welfare or in his own interests" (s 3 (6) (ca) Bail Act 1976).
Youths aged 10 and 11 may be remanded on unconditional bail, conditional bail, bail supervision and support or bail Intensive Supervision and Surveillance Programme (ISSP). Where a court remands on bail a 10 or 11 year old who is either charged with or has been convicted of a serious offence or, in the opinion of the court, is a persistent offender on bail the court may order a local authority to make an oral or written report specifying where the child is likely to be placed or maintained if he is remanded into local authority accommodation (s 23B Children and Young Persons Act 1969).
Youths aged 12 to 17 may be remanded on unconditional bail, conditional bail, conditional bail with electronic monitoring, bail supervision and support, bail supervision and support with electronic monitoring, bail Intensive Support and Surveillance Programme (ISSP), with voice verification and/or with electronic monitoring.
An electronic monitoring requirement may only be imposed on a youth aged 12 to 16 inclusive if the following conditions are satisfied:
- the child or young person has been charged with or convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more; or
- is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings amount or would amount if convicted of the offences with which he is charged to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation; and
- the court has been notified by the Secretary of State that electronic monitoring arrangements are available in the area and is satisfied that the necessary provision can be made under those arrangements; and
- the youth offender team has informed the court that the electronic monitoring requirement is suitable for that child or young person (s 3AA Bail Act 1976) (Archbold 3-12).
A court can only impose an electronic monitoring requirement on 17 year olds if:
- the court is satisfied that without the electronic monitoring requirements the person would not be granted bail; and
- the court is satisfied that the necessary provision for dealing with the person can be made under local electronic monitoring requirements; and
- the youth offending team has informed the court that the electronic monitoring requirement is suitable for the youth (s 3AB bail Act 1976) ( Archbold 3-69).
Prosecutors are reminded that all non custodial remand options should be considered before an application for a remand with a security requirement or a remand to a remand centre or prison is made.
Youth Offender: Remands to Local Authority Accommodation
If bail is refused to a child or young person, the Court shall remand him or her to local authority accommodation, unless the youth is remanded to a remand centre or prison. This also applies to committals to Crown Court whether for r trial or for plea and sentence and to sendings to the Crown Court for trial (section 23(1) Children and Young Persons Act 1969) (Archbold 3 - 69). A remand to local authority accommodation is a remand in custody and custody time limits will apply (section 23(11)(b) Prosecution of Offences Act 1985).
"Young person" is defined for the purpose of remand as a person who has attained 14 years of age but is under 17 years. The remand is for a maximum of eight days, the remand in absence procedure not applying to youth offenders. If the remand is after conviction, then the maximum period is three weeks.
NB. Magistrates' Courts Act 1980 Section 128A applies to youths (Archbold 3 - 154).
The Court shall designate the local authority that is to receive the youth offender and may impose any condition on behalf of the local authority that could be imposed under Section 3(6) of the Bail Act 1976, although it must consult the authority before doing so. It may also impose a security requirement, if the criteria set out in subsection 5AA Children and Young Persons Act 1969 are satisfied (Children and Young Persons Act 1969 Section 23(6)(7)) (Archbold 3-71/72).
The Court must explain to the offender in open Court and in ordinary language why it is imposing such conditions. The Court may also impose requirements on the authority itself for securing compliance with any conditions imposed or stipulating that he or she shall not be placed with a named person. (Children and Young Persons Act 1968 s 23 (8) and (9) and (10)).
The authority itself may ask the Court to impose conditions under Section 23(10) Children and Young Persons Act 1969 and both it and the offender can apply to the Court to vary or revoke any conditions previously imposed.
"Consultation" with the local authority is defined as such consultation (if necessary) as is reasonably practicable in all the circumstances of the case.
You should know something of the local authority's arrangements for accommodation of youth offenders on remand. In all applications therefore, it will be advisable to talk to the representative from the youth offending team before addressing the Court on the need for any conditions to be imposed on the remand, or for a stipulation that the defendant should not live with a named person.
Youth Offender: Remands with Security Requirements
Youths aged 10 and 11 can only be remanded to local authority accommodation without a security requirement.
The Court may, after consultation with the local authority, impose a security requirement, i.e. a remand to secure accommodation, rather than local authority accommodation provided that::
- the youth has attained the age of 12, and
- the offence criteria is satisfied; and
- the protection criteria is satisfied; and
- the Court is of the opinion after considering all the options for the remand of the person, that only remanding him to local authority accommodation with a security requirement would be adequate to protect the public from serious harm from him, or to prevent the commission by him of imprisonable offences.
- the youth is charged with or has been convicted of a violent or sexual offence as defined in Parts 1 and 2 of Schedule 15 Criminal Justice Act 2003 or an offence carrying imprisonment of 14 years or more in the case of an adult; or
- the youth is a girl aged 12 to 16 inclusive or a boy aged 12 to 14 inclusive and is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings amount to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation (the offence criteria); or
- the youth is a boy aged 15 or 16 and has a recent history of absconding while remanded to local authority accommodation and is charged with or has been convicted of an imprisonable offence alleged or found to have been committed while he was so remanded.
After considering all the options for the remand that only a secure remand would be adequate:
- to protect the public from serious harm from him; or
- to prevent the commission by him of imprisonable offences.
It will be appropriate for you to address the Court on whether the offence and protection criteria for a security requirement are met, and if so whether such a remand is necessary. Before making such an application, you should consult the Y.O.T. representative to explain the reasons that a security requirement is sought and to ascertain whether they can offer a suitable alternative such as ISSP or bail support. You should only make an application for a security requirement when you have considered all of the alternatives and decided that they would be inadequate to protect the public from serious harm or to prevent the commission of further offences.
The Criminal Justice Act 1991 abolished remands to prison and remand centres for offenders under 17, and replaced them by remands to secure accommodation. The Criminal Justice Act 1991 creates transitional provisions for 15 and 16 year old boys, allowing remand to remand centres and prisons to continue until the Home Secretary is satisfied that local authorities can meet the obligation to provide secure accommodation.
Remand will be to secure accommodation and not to a remand centre or prison (section 23 (4) Children and Young Persons Act 1969) where the court is satisfied that the security requirement is met, but decides that:
- it is undesirable to remand a 15 or 16 year old boy to remand centre or prison because of his physical or emotional immaturity or a propensity of his to harm himself (sec 23 (5A) Children and Young Persons Act 1969); and
- the local authority, YOT or probation officer has been consulted; and
- a bed in secure accommodation is available.
You should not use the mere existence of a previous conviction or a current charge of an offence punishable with 14 years or more to justify an application which otherwise lacks merit.
You should advise the defence solicitor and the Court of any information on the CPS file that indicates that a youth liable to remand to a remand centre or prison has any physical or emotional maturity issues or a propensity to self harm.
Seventeen year olds are treated as adults by the various remand provisions but will appear in the Youth Court. It is not necessary to satisfy the security requirement criteria, as remands will be to a remand centre or prison rather than secure accommodation. However, you should consider whether options such as bail ISSPs and electronic tagging are available and sufficient to alleviate any concerns before applying for a remand in custody.
A National Protocol and Joint Guidance have been issued by Her Majesty's Court Service in consultation with the Youth Justice Board, Association of Youth Offending Team Managers and the Association of Directors of Social Services.
The Protocol sets out a framework to ensure:
- that cases involving a potential Court Ordered Secure Remand (COSR) are highlighted at the earliest opportunity;
- that the court hears the case as early as possible and makes a timely remand decision (taking account of the overarching interests of justice);
- that where a COSR is ordered, the YJB placement and Casework Service and local authority are contacted as a matter of urgency and ensuring that the young person is kept safe and secure;
- that the young person is quickly placed into the appropriate secure estate establishment; and
- that the young person is safely and securely escorted to the secure establishment in a timely fashion.
If a youth offender is remanded to local authority accommodation, the authority can separately apply to the Court for a Secure Accommodation Order. The application is made under Section 25 Children Act 1989, where the remand has been made by the Youth Court or Magistrates Court, the authority must apply to that Court and not to the Family Proceedings Court
(s 25 Children Act 1989) (Archbold 3 - 79).
The power under Section 20(8) CA 1989 of a person with parental responsibility to remove a child or young person from secure accommodation does not apply to a child remanded on criminal charges.
The only grounds available to a local authority to make applications are:
- He or she has a history of absconding and is likely to abscond from any other description of accommodation, and if he or she absconds is likely to suffer significant harm; or
- If he or she is kept in any other description of accommodation he or she is likely to injure himself/herself or other persons.
The maximum period for which a Court can make a Secure Accommodation Order on a youth offender who has been remanded to local authority accommodation is the period of the remand. Where a youth offender is being looked after bys a local authority, the authority can apply to the Court for a Secure Accommodation Order for a period of up to 28 days.
If the authority intends to do so, then it may well be advisable for Prosecutors to delay any application for remand to local authority accommodation until the local authority application has been heard. If the application is successful you can consider seeking a remand on bail with a condition of residence where directed by the local authority. In cases where the offender is likely to be remanded for a considerable period of time, it will obviate the need for the offender to be produced at Court every 7 days.
If the offender is not already in care, then the remand must be dealt with first and a remand to local authority accommodation granted before the local authority has power to seek a Secure Accommodation Order. Such applications are made separate from the Prosecution application and some Courts do not allow the Prosecutor to be present whilst they are being made.
Time that is spent remanded or committed in custody (including Police detention, or in secure accommodation), is deducted from the final sentence. Time spent remanded or committed to local authority accommodation does not count against the final sentence.
Youth Offender: Local Remands
It is possible to remand a juvenile offender to Police cells on the basis of enquiries into other offences, as in the case of adults, subject to the usual considerations to bail, the maximum period is 24 hours as opposed to 3 days (s 23 (14)(b) Children and Young Persons Act 1969).
A custody officer, after charge, is under a duty to ensure that an arrested youth is moved to local authority accommodation, unless it is certified:
- In the case of a juvenile who is - 12 or over, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him; or
- In the case of any juvenile, for the reasons specific on the certificate, it is impracticable to make the transfer
and (s 38(6) Police and Criminal Evidence Act 1984).
Although the sub-section uses the word "impracticable" in relation to those under 12 years, the construction of the statutory provision makes clear that the type of accommodation in which the local authority propose to place the youth is not a factor which the custody officer may take into account in considering whether the transfer is acceptable. As the detention of young people under 12 in secure accommodation would not be available to the Court, other than at the instigation of the local authority, itself under Section 25 of the Children Act 1989 it would be improper to try and use Section 38(6) PACE 1984 to achieve it.
see also Legal Guidance on Youth Offenders
Bail Applications in the Crown Court
Crown Court Applications: Pre-Committal or Transfer
The jurisdiction of the Crown Court is covered by Section 81 Supreme Court Act 1981 as amended (Archbold 3 - 175). By virtue of Rule 19(2) Crown Court Rules 1982, the Prosecutor is entitled to at least 24 hours' notice in writing from the Defence of the intention to make a bail application to the Crown Court (Archbold 3 - 181).
The period of 24 hours must not be waived unless adequate information is readily accessible and the file can be thoroughly prepared for the purposes of the application.
It is vital that Unit Heads ensure that a system is in place that provides for the thorough review and preparation of files which are to be the subject of a Crown Court bail application.
The use of fax facilities may assist the transmission of bail documents to the appropriate office but Prosecutors and Paralegal Officers need to bear in mind that fax is only viable where a relatively small amount of material has to be transmitted. The date and time of receipt of the notice must be recorded on the notice itself. The use of Secure E-mail may be the most appropriate way to transfer this information.
Conduct of the Crown Court Application
Wherever practicable the conduct of the application should be handled by a CPS Prosecutor rather than by an outside agent.
Unit Heads must ensure that applications in particularly serious, sensitive or complex cases are conducted by a Prosecutor of suitable experience.
Prosecutors and Paralegal Officers who are preparing cases should ensure that the files are thoroughly prepared for the Prosecutor who will appear in the Crown Court.
You should ensure that the Police are informed of the application and that consideration is given as to whether the officer in the case needs to attend the application. (This is in addition to any local practice whereby Crown Court judges require an officer to attend, as at present with the Central Criminal Court).
The Prosecutor must bring all information including previous relevant behaviour - not just convictions - of the defendant to the attention of the judge/court, whose responsibility it is to decide whether or not bail should be granted. Any objections raised by the prosecution and the Court's response should be accurately noted by the prosecutor and on the court file. Steps should be taken, where possible, to ensure all parties and the Court have noted the same information.
You should keep under review the grounds for opposing bail. It may be appropriate to put forward grounds and relevant considerations which were either not advanced or advanced unsuccessfully in the magistrates' court.
Where a defendant has previous convictions, a full record of them must always be available for the judge.
Crown Court: Post Committal Applications
Where practicable, a CPS Prosecutor should conduct the application. If an agent is to be instructed, it is important that the file is thoroughly prepared and that a Prosecutor or Paralegal Officer is in a position to brief him or her on any relevant matters on the morning of the application.
Applications to the High Court
The High Court no longer has jurisdiction to entertain an application in relation to bail:
- where a magistrates' court has granted or withheld bail or has varied the conditions of bail; nor
- where the Crown Court has determined either:
- an application under section 3(8) (an application by the police, prosecutor or accused to vary conditions or to impose them where none were imposed); or
- an application under section 81(a), (b), (c) or (g) of the Supreme Court Act 1981.
The High Court has no jurisdiction to entertain a bail application where the Crown Court has heard an appeal by the accused against the imposition of certain bail conditions by magistrates under section 16 Criminal Justice Act 2003, nor where the Crown Court has granted or withheld bail in the case of retrials following a quashed acquittal (sections 88 and 89 of the CJA 2003).
The High Court jurisdiction in respect of habeas corpus is unaffected.
The High Court has considered whether defendants who are now deprived of a right to apply for High Court bail, should properly apply for habeas corpus. In Rupert Jason Sumpter v Director of Public Prosecutions (6th July 2004, unreported), Treacy J. stated:
"The preservation of the Habeas Corpus remedy in these circumstances is not to be regarded as a substitute route for the now abolished inherent right of the High Court to grant bail after a decision by the crown court.
The intention of Parliament plainly was to achieve a degree of finality in relation to Bail Act applications and decision making and the route which has been adopted today is not one which the court wishes to encourage."
Prosecutors should be aware however that the possibility of a judicial review of a decision of bail still exists despite these changes. It was used in R (ex parte R) v Snaresbrook Crown Court  EWHC 3569 (Admin) to overturn a decision by a judge to remand a convicted defendant in custody without hearing argument or giving reasons. This decision and others (see also M v Isleworth Crown Court  EWHC 363 (Admin)) emphasised that this procedure should be used sparingly. Although these cases relate to decisions to grant bail, there seems to be no reason in principle why a prosecutor could not seek judicial review of a decision which is Wednesbury unreasonable.
Bail Applications Involving the Official Solicitor
The Official Solicitor to the Supreme Court acts for defendants in custody who wish to apply for bail but are unable to do so through lack of means to instruct a solicitor. (RSC, Order 79 r 9).
The procedure is that the defendant completes the appropriate Home Office form and the Prison or Remand Centre should send the form to the Official Solicitor and a copy, for information, to the local Crown Court Centre. At the same time the Prison or Remand Centre sends a request for a report in the form of a standard letter and questionnaire direct to the Police Station dealing with the defendant's case. The questionnaire requests details of any objections to bail.
In the light of Section 15(3) Prosecution of Offences Act 1985, it has been decided (with the concurrence of the Official Solicitor) that responsibility for the content of the completed form should rest with the Crown Prosecution Service rather than the Police.
It is important, therefore, that Heads of Units ensure that there is a system for the passing of a questionnaire received from the police to the relevant Unit Office. The system should allow for the provision of any information from the Police which will assist the CPS in responding to the questionnaire.
The questionnaire should be properly completed by a Prosecutor and returned to the office of the Official Solicitor. Thereafter the Official Solicitor will deal with the CPS Unit Office.
The Official Solicitor's address is 81 Chancery Lane, London, WC2A 1DD. (Telephone: General Enquiries - 020 7911 7127; Fax: 020 7911 7105; DX 0012 London Chancery Lane WC2; Email firstname.lastname@example.org; - (confirmed in February 2009).
Failing to Surrender to Bail: Charging Practice
Section 6 Bail Act 1976 creates two offences:
- Failing without reasonable cause to surrender to custody (s 6(1)); and
- Having reasonable cause for failing to surrender, failing to surrender to custody as soon after the appointed time as was reasonably practicable (s 6(2)) (Archbold 3 - 27).
It is punishable as a summary only offence (maximum penalty 3 months and/or level 5 fine) or as a contempt of court. If sentenced in the Crown Court (whether dealt with as a contempt of court or committed to the Crown Court for sentencing) the maximum penalty is 12 months' imprisonment and/or fine.
The offences are often charged, and dealt with, in the alternative. The offence under Section 6(2) will cover situations where a defendant had a reasonable excuse for failing to surrender, but failed to surrender as soon as practicable after the excuse had ceased to apply.
Section 6 applies where:
- The Police grant bail to a suspect to appear at the Police Station;
- The Police grant bail to a defendant to appear at Court on the first appearance;
- The Court grants bail to the defendant to return to Court at a later date and time.
When a defendant fails to appear at Court you should generally apply to the Court for a warrant without bail. In exceptional circumstances you may use your discretion as to whether a warrant backed for bail may be appropriate.
Where a person has been bailed and fails to surrender as required, you should follow the guidance set out in the Consolidated Criminal Practice Direction amended and reissued 18 May 2004.
The Consolidated Practice Direction sets out two principals for courts when dealing with failure to surrender offences, namely:
- These offences should be dealt with as soon as possible (even if the offence that led to the grant of bail is adjourned); and
- The Bail Act offence should result in a separate sentence from that imposed for other offences.
Accordingly, prosecutors must remind courts of the following:
- to deal with Bail Act offence as soon as reasonably practicable;
- not to defer the Bail Act offence until the proceedings for the substantive offences have been concluded;
- to consider whether bail should continue in the light of failure to surrender; and
- to give reasons in open court if it is considered not practicable to deal with the Bail Act offence there and then, but rather to defer the matter until the end of proceedings. If this occurs, and the person is sentenced for the Bail Act offence at the same time as for the substantive offences, then the prosecutor must remind the court that any term of imprisonment for failure to surrender should run consecutively to any other term of custody.
Prosecutors should specifically endorse the file as to whether the Practice Direction was followed by the court, as well as any representations that were made. If prosecutors are faced with continuing court resistance to application of the Practice Direction, then the matter should be escalated by line management to the Chief Clerk in the relevant court centre.
Prosecutors should be aware that under paragraph 6 of Part 1 of Schedule 1 of the Bail Act 1976 as amended by section 15 (1) of the Criminal Justice Act 2003, a defendant who fails to surrender, may not be granted bail unless the court is satisfied that there is no significant risk that, if released on bail, he would fail to surrender to custody again.
Furthermore paragraph 6(2) provides that where it appears to the court that the defendant had reasonable cause for his failure to surrender, he does not fall within this paragraph unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.
If the defendant gives a reasonable excuse for failing to surrender to bail, a prosecution under section 6(2) of the Act may still be appropriate.
At Committal Proceedings
If at committal proceedings the defendant also faces a charge of failing to surrender to bail you should consider the following:
- Other than in exceptional circumstances the court should be asked to deal with that charge in some way;
- The hearing of the summary charge should not usually be adjourned sine die pending the outcome of Crown Court proceedings, since there is no reason why the summary trial cannot be held at short notice.
You should keep the provisions of Section 6(6)(b) Bail Act 1976 in mind as they enable a magistrates' court which has convicted a defendant of a Bail Act offence to commit the defendant to the Crown Court for sentence on that offence. There is no power to commit without a conviction in the magistrates' court.
Failing to Surrender to Bail: Public Interest Considerations
These considerations apply to both limbs of Section 6 Bail Act 1976.
A prosecution will normally be appropriate if a person has deliberately failed to attend with no reasonable cause unless he or she is able to put forward substantial mitigating circumstances.
Where a defendant has surrendered to bail at court late, you should consider the following in deciding whether or not it is in the public interest to proceed with an offence of failing to surrender:
- Has the defendant breached his bail before, in this case or in the past?
- Has there been any inconvenience to the court generally?
- If late on the date for trial, whether any witnesses have been inconvenienced;
- Any reason offered by the defendant for his late appearance; and
- Has the defendant arrived at court at a time after a warrant for his arrest has been issued?
Failing to Surrender to Bail: Breach of Court Granted Bail
A breach of court granted bail is seen as a contempt of court, therefore the court should initiate proceedings itself after an express invitation to do so by the Prosecutor.
The six month time limit for laying an information does not apply to a breach of court granted bail. Any proceedings should be initiated at the first hearing date at which the defendant appears following his arrest.
Where the court accepts the invitation, the CPS will conduct the proceedings. You should then decide which of the two offences under Section 6 is the more appropriate upon which to proceed.
The Police may either:
- Grant a person bail under section 30A PACE to attend a police station;
- Grant a person pre-charge bail under section 37 PACE for a charging decision to be made;
- Grant a person bail under Section 34(5) PACE for further investigations; or
- Grant a person bail post-charge under section 38(1) PACE; or
Failure to answer bail in any of these cases is not seen as a contempt of court since the court did not impose the original bail.
Proceedings must be begun by the laying of an information. This should be done by the Prosecutor who should lay an oral information for failing to surrender to Police bail.
Section 127 Magistrates Courts Act 1980 no longer applies to offences contrary to Section 6 Bail Act. Magistrates have jurisdiction to try a Bail Act offence if an information was laid within six months of the Bail Act offence or within three months of the person surrendering to custody or being arrested or brought before a court for the Bail Act offence or the offence for which he was granted bail. There is no reason to interpret the legislation as applying only to offences of absconding where the bail was granted after the amendments to the legislation came into effect (5 April 2004). To interpret the legislation in this way would defeat its purpose and give those who abscond for more than six months an advantage over those who answer their police bail.
Where a defendant is charged, bailed and fails to appear at the specified date and time you should lay an information on the date of the failure to surrender.
Where a person is arrested or surrenders to custody at the police station or court and it appears that a Bail Act offence may have been committed at an earlier stage in the proceedings but no information laid, you should lay an information for failing to surrender to police bail.
Where a defendant has been granted Section 47(3) bail and fails to answer if you should consider advising the Police to lay an information in appropriate circumstances.
Where a defendant contests an offence under Section 6 Bail Act 1976 there is no need to call formal evidence unless contesting the defence of reasonable cause; the Court's record of the grant of bail, or the charge sheet, if Police bail, giving details of the time and date the defendant was due to surrender will be enough.
Breach of Bail in Cases where Extradition is being sought by a Foreign Government ("export extradition")
Export extradition is dealt with exclusively at the City of Westminster Magistrates' Court by the Extradition Unit within special Crime and Counter Terrorism group email email@example.com)
However, where a person is brought to another court for a breach of bail there is jurisdiction to deal with the breach in the usual way.
Please process the case and notify the extradition unit at the above email address.
The right to appeal the granting of bail is also available. This is a complex process as it involves amendments made to the Bail Amendment Act 1993 which allowed appeal to the Crown Court but which was in turn amended by the Police and Justice Act 2006 schedule 13 para 27&28 to make the venue for appeal the High Court. Please contact the Extradition Unit before deciding whether to appeal bail.
For Bail: England and Wales, see Extradition Act 2003, section 198
For Appeal against Grant of Bail, see Extradition Act, section 200
The Sentencing Guidelines Council's Definitive Guideline on Fail to Surrender to Bail applies to the sentencing of adult offenders convicted of failing to surrender to bail who are sentenced after 10 December 2007.
The amended Consolidated Criminal Practice Direction states (at paragraph 13.5) that "the sentence for the breach of bail should usually be custodial and consecutive to any other custodial sentence". (R (Evans) v Chester Magistrates' Court  EWHC 536 (Admin); Neve  8 Cr App R (S) 270; McMullen  EWCA Crim 2221; White and McKinnon  EWCA Crim 2952)
Recording Bail Recommendations, Applications and Decisions
It is vital that grounds for objecting to bail and the reasons for court decisions are accurately recorded by both the Crown and the Court.
Prosecutors, whether reviewing a case or appearing as advocates, should ensure that the following information is recorded:
- The bail or custody representations, including any proposed conditions;
- The results of any discussions with the Police concerning bail;
- Full reasons for the bail or custody representations referring to the relevant provisions of the Act where conditional bail or a remand in custody is suggested;
- Recommendations, applications and decisions resulting from considering the provisions of the Bail (Amendment) Act 1993 (the BAA);
- A full note of the Court's decision and the grounds for the decision.
Where appropriate, the oral notice and the time it was given in relation to an appeal under the BAA; and
- Any relevant information which would not be readily apparent from the papers on the file.
Given that bail can be re-visited at various stages of a case (including appeals by the prosecution against the granting of bail), it is important that the Crown's objections to bail and the Court's decision (including which grounds if any it upholds) are clearly noted by all parties and the Court.
Communication of Bail Results
Whilst it is not the responsibility of the CPS to provide results of hearings, there is a need to tell the Police the results of bail decisions in sensitive cases (for example rape, serious assaults, domestic violence), so that the Police can keep vulnerable witnesses informed of the position.
Heads of Units should ensure that there is an effective system in their unit of communicating such decisions.
Bail (Amendment) Act 1993 (The BAA)
The Magistrates' Court and Bail (Amendment) Act 1993 (The BAA)
Where a person is charged with, or convicted of, offences punishable by imprisonment (see section 18 Criminal Justice Act 2003), the BAA gives the Prosecution a right of appeal to a Crown Court Judge against the granting of bail by magistrates. The right is exercisable by a Crown Prosecutor or CPS agent (Archbold 3 - 86).
The right of appeal may only be exercised if you have made representations that bail should not be granted, i.e. you have unequivocally opposed bail on the grounds contained in paragraph 2, Part 1, of Schedule 1 to the Act (Archbold 3 - 48).
Where a Prosecutor has decided to recommend a remand in custody to a magistrates' court in a case to which the BAA applies, he or she must then go on to consider whether an appeal would be appropriate in the event that the court decides to grant bail. The recommendation must be clearly endorsed on the file.
The BAA confers considerable powers on the Prosecutor and it is absolutely essential that they are exercised judiciously and responsibly. A decision to appeal will be announced in open Court to the magistrates who have just decided to grant the defendant bail. The decision to appeal may well be the focus of much public attention.
Considerations re Appeal
The right of appeal under BAA should only be used in cases of grave concern where there are substantial grounds under Bail Act 1976 which would allow the Court to refuse bail. The Prosecutor considering whether an appeal is appropriate should apply an overarching test of whether there is a serious risk of harm to any member of the public or any other significant risk of harm to any member of the public or any other significant public interest ground.
Right of Appeal
Where a Prosecutor has decided to recommend to a magistrates' court a remand in custody in a case to which the BAA applies, he or she must then go on to consider whether an appeal would be appropriate in the event that the Court decides to grant bail. The recommendation must be clearly endorsed on the file.
CPR 19:17(4) as amended by the Criminal Procedure (Amendment) Rules 2010 SI Number 1921 of 2010 (L.12) states that a defendant has a right to be present at the hearing where the prosecution is appealing against the granting of bail. This comes into force on 4 October 2010.
In considering whether an appeal is appropriate, the seriousness of the offence is a factor to be considered. The public interest ground should not be used to justify appeals in less serious cases. The nature of the offence which the defendant faces is relevant if it illustrates the risk created by granting bail. Examples might be extreme cases of personal violence such as murder, rape, robbery or aggravated burglary, particularly if it is alleged that weapons have been used in offences of violence or during the commission of sexual offences.
A serious risk of harm to public safety and property may give grounds to justify an appeal. Examples might be arson with intent to endanger life or being reckless as to whether life is endangered, terrorist offences or riot.
The risk to the individual victim or victims will be a factor. The following situations may justify the exercise of the right of appeal:
- A record which discloses previous convictions, particularly of a similar kind against the same victim or victims with similar characteristics;
- Evidence of violence or threats of violence to the victim or his or her family; or
- Evidence of undue influence over the victim, for example where there are alleged sexual offences against young people or children.
A strong indication that the defendant may abscond may be relevant, particularly if he or she has no right to remain in Britain or has substantial assets or interests abroad. On the other hand the right of appeal should not be used simply because the defendant has no fixed address or settled way of life, particularly where this may be coupled with mental health problems (unless of course there are genuine indications of danger to the public).
This guidance is not intended to be exhaustive and each case will need to be decided on its merits after consideration of any representations made to the court and any other information which may become available.
Bail information schemes where available are one source of additional information with the potential to improve the quality of decisions over bail.
Bail Information Schemes are operated in Courts by the Probation Service and in Prisons or Remand Centres by Prison service and probation service staff. They provide verified factual information on a Bail Information Report which is supplied to both the CPS and the Defence. Information must be verified from at least one source which will be indicated on the Bail Information Report.
In the event of a successful appeal to the Crown Court, the Judge should be invited to remand the defendant, where he or she is subject to the magistrates' court's jurisdiction, to appear before the Justices on a date which must be no more than eight clear days from the date of his last appearance before them.
Very strict time scales are imposed by the BAA. See the following:
Bail (Amendment) Act 1993 S 1 (Archbold 3 - 86; 3 - 87);
The Magistrates' Courts Rules 1981 Rule 93A (Archbold 3 - 88; 3 - 89) (Stones 2003 1 - 6036A); and
The Crown Court Rules 1982 Rule 11A (Archbold 3 - 90; 3 - 91) (Stones 2003 1 - 6082A).
The oral notice must be given prior to the end of the proceedings in which bail is granted, i.e. before the Court proceeds to other business and before the defendant is released from custody. Oral notice must be entered immediately after the grant of bail with or without the conditions announced. If the defendant has left the court prior to the oral notice of appeal being given, then it is too late;
Note: The requirement that oral notice of appeal is given to the magistrates' court at the conclusion of the proceedings was satisfied where notice was given five minutes after the Justices had withdrawn. R v Warwick Crown Court, ex parte Jeffrey (2002).
The oral notice must be followed by a written notice of appeal to be served on the magistrates' court (i.e. the clerk) and on the defendant personally within two hours of the conclusion of the proceedings.
If the Prosecution fails to serve the notice on either the court or the defendant within the two hour period, the defendant will be released from custody and the appeal treated as abandoned.
The hearing of the appeal at the Crown Court must be commenced within 48 hours from the date on which oral notice was given. The time limit runs from midnight of the date on which notice was given but does not include Saturdays, Sundays or Bank Holidays.
Bail appeals can be conducted by any lawyer subject to local area arrangements.
If having heard the Defence representations in court and having considered any other information not previously available you still consider that the right should be used, you may do so.
Heads of Units must ensure that blank CPS file jackets are available at the Court so that the appropriate full endorsement may be entered on the file including time of the oral notice of appeal. You should also ensure that a supply of appeal forms is available at Court Centres. A blank notice of appeal to the grant of bail can be found at NA/1.
Once an oral notice of appeal has been given, the defendant is remanded in custody until the first of the following events:
- A failure to serve the written notice on both the court and the defendant within two hours.
- A formal abandonment of the appeal following the service of a written notice of appeal; or
- The determination of the appeal.
Where service of the notice cannot be made in court immediately following the giving of oral notice to the court, every effort should be made by the Prosecutors to ensure the production of the defendant to the court within the two hour time limit in order to effect personal service of the written notice.
Where this is not possible, there should be liaison with the Police at local level in order to guarantee personal service of the written notice within the required period. The service of the prosecution notice should be suitably endorsed by the person who effects service.
In busy courts, Prosecutors must, wherever possible, seek an adjournment for a sufficient period of time to prepare the written notices.
It is the responsibility of the magistrates' court to advise the Crown Court of the appeal.
Areas will need to ensure the availability of a lawyer, on call at weekends and Bank Holidays. The CPS file jacket must be endorsed appropriately.
After the written notice of appeal has been given, you should ensure that the file is reviewed again and finally prepared for the hearing of the appeal.
Given that the advocate will be expected to rehearse the full arguments for and against the grant of bail to the Judge, it is important that the requirements for full endorsements have been followed.
If the prosecution appeal is successful, the defendant will be remanded in custody to appear at the magistrates' court on a date not more than eight clear days from the original magistrates' court hearing. The Crown Court has no power to remand for a longer period.
This Act does not circumvent Custody Time Limit Rules.
The power to abandon an appeal exists to enable the defendant to be released as soon as possible. This will occur where the Prosecution has decided upon reflection that the appeal should not have been made or where further information is received which suggests that the appeal need not be pursued.
Abandonment should always be by way of written notice, whichever stage the appeal has reached. Schedule 10 to Crown Court (Amendment) Rules 1994 sets out the form of notice to be used. The notice must be served on the defendant or his or her legal representative, the magistrates' court and the Crown Court forthwith.
Whenever possible the notice of abandonment should be sent by fax. The magistrates' court is responsible for arranging the release of the defendant on bail, subject to the conditions, if any, originally imposed by the magistrates.
A log should be kept in Branches of all appeals, recording the following information:
- Name of the defendant;
- Unique reference number/file number;
- Nature of the offences charged;
- Date the appeal was entered;
- Any failure to give the written notice within two hours and why;
- Date the appeal was abandoned;
- Date the appeal was heard; and
- Result of the appeal.