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Bail

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Introduction

The decisions on bail, in criminal proceedings, 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 for these reasons that the Crown Prosecution Service has included the way in which these decisions are made as a benchmark of the quality of our case management and preparation in our Casework Quality Standards.

A benchmark of the quality of CPS case preparation is that we are:

"Continually reviewing the remand status of defendants, and ensuring that custody time limit cases are dealt with in accordance with the national standard."

Custody Time Limits are dealt with elsewhere in the Legal Guidance.

A benchmark of the quality of CPS case presentation is that we are:

"Opposing bail where it is appropriate to do so, taking account of the risk posed to victims, the public and the course of justice."

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. It is also vital that the reasons for opposing bail, representations made by the Defence and the decisions of courts are recorded on the case file or CMS.

These standards 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.

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Police Bail

Pre-Charge

This can be imposed:

  1. Where there is as yet insufficient evidence to charge a suspect and he is released pending further investigation (ss. 37(2), 34(2) and 34(5) of the Police and Criminal Evidence Act 1984 (PACE)).
     
    Where it is no longer necessary to detain a suspect to secure or preserve evidence or obtain it by questioning, yet the police are not in a position to charge, the suspect must be released, but it is open to the police to release him on bail where there is a need for further investigation of any matter for which he was detained.
     
    Where s. 37(2) PACE is cited and the custody officer has authorised the release of the suspect, having determined that there is currently insufficient evidence to charge, he may be released pending the obtaining of further evidence and conditions of bail can be attached where necessary to prevent the suspect from failing to surrender, offending on bail, interfering with prosecution witnesses or otherwise obstructing the course of justice, or for his own protection. Where s. 34 PACE is cited (for example, where detailed and lengthy investigation is required and no assessment of the evidence can be made), no conditions of bail can be imposed - see R (on an application by Torres) v Metropolitan Police Commissioner [2007] EWHC 3212.
  2. Where the police consider that there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision (s. 37(7)(a) PACE).
     
    See s.37B PACE and the Director's Guidance on Charging for guidance and procedure relating to the provision of charging advice by the CPS.
     
    In order to obtain this advice, the police may release a suspect on bail to return to the police station at a future date and may impose conditions on that bail (s. 47(1A) PACE. Such advice will normally be provided under the Full Code Test of the Code for Crown Prosecutors prior to the suspect's return.

Under the Code for Crown Prosecutors the Threshold Test may only be applied where the prosecutor is satisfied that all of 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 in order to meet the Full Code Test. Where a suspect is considered eligible for bail pending the obtaining of further evidence, the Threshold Test is not appropriate.

Breach of pre-charge bail conditions

The police have a power of arrest where an officer has reasonable grounds for believing that conditions imposed on pre-charge bail have been breached (s. 46A(1A) PACE).

Once in detention, the custody officer will determine whether the suspect can be charged (s. 37C(2)(a) PACE). If authorisation to charge has been provided, the arrested person can be charged in accordance with that advice. If authorisation has not been given, then this can be sought whilst the suspect is detained. The breach of bail conditions may necessitate the Threshold Test being applied, where previously, the grounds for applying this test were not met.

If a charge is not authorised, the suspect can be released without charge, either on bail or without bail (s. 37C(2)(b) PACE). Section 37C(4) states that if a person is released on bail under s. 37C(2)(b), then that person shall be subject to whatever conditions applied immediately before his arrest for breach. There is no power to vary the conditions of bail that previously applied.

Post Charge

Where there is sufficient evidence and the suspect is charged with an offence (s. 37(7)(d) PACE), the police can keep him in detention or release him on bail to appear at court at a future date and may impose conditions on that bail (s. 47(1A) PACE). It should be noted that (either pre or post charge) the police cannot impose conditions on a suspect:

  • to reside at a bail hostel;
  • to attend an interview with a legal adviser;
  • to make him or herself available for enquiries and reports;
  • that contain electronic monitoring requirements.

Breach of post charge bail conditions

The procedure for dealing with breach of police imposed bail conditions that are in place prior to the first court appearance matches the procedure for dealing with breaches of court imposed conditions - see below.

Variation of police imposed bail conditions

Conditions imposed by a custody officer may be varied by:

  • The same custody officer or another custody officer serving at the same police station on receipt of a request from the person to whom bail was granted (s. 3A(4) PACE). There is no stated procedure for this process, but the police will normally require that a request is in writing. More onerous conditions can be imposed.
  • The magistrates' court on application by the suspect (s. 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 and the procedure for applying for the variation is set out at: Criminal Procedure Rules, Part 14, bail in the magistrates' court and the Crown Court - specifically Criminal Procedure Rule (Crim.PR.) 14.6.

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, the prosecutor should ask the Police to give their view of the application.

If the CPS has not already received a file, the prosecutor should request a file from the Police. The Police will supply either the appropriate Manual of Guidance file, or if this is not yet available, sufficient information relating to the circumstances of the case and the suspect's antecedents to enable an application to be dealt with effectively.

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The Right to Bail

Under s. 4 of the Bail Act 1976, on each occasion that a person is brought before a court accused of an offence, or remanded after conviction for enquiries or a report, he must be granted bail without condition, if none of the exceptions to bail apply.

Prosecutors must keep the issue of bail under review throughout the life of the case.

Conditions of bail may only be imposed where necessary to ensure that the exceptions to bail are addressed. Only where conditions are not sufficient to address the exceptions to bail should a remand in custody be sought.

Under s. 5 of the Bail Act 1976, the court or officer refusing bail or imposing conditions must give reasons for their decision.

Exclusions to the right to bail

The general right to bail does not apply in the following circumstances:

Murder

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 by s. 115(1) of the Coroners and Justice Act 2009. This does not apply to attempted murder or conspiracy to murder.

Where a person is charged with an offence of murder or attempted murder, and has previously been convicted in the UK or court of an EU Member State of an offence of murder, attempted murder, rape or a serious sexual offence (as listed in s. 25(2) of the Criminal Justice and Public Order Act 1994), he shall only be granted bail where there are exceptional reasons, which justify it.

Section 114 of the Coroners and Justice Act 2009 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 satisfied 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. In coming to that decision, the court must have regard to the nature and seriousness of the offence, the suspect's character and antecedents and his record in relation to previous grants of bail.

Manslaughter and Serious Sexual Offences

Where a person is charged with an offence of manslaughter, rape or a serious sexual offence, and has previously been convicted in the UK or court of an EU Member State of an offence of murder, attempted murder, rape or a serious sexual offence (as listed in s. 25(2) of the Criminal Justice and Public Order Act 1994), he shall only be granted bail where there are exceptional reasons, which justify it.

Note: Where a person charged with one of the offences referred to above has a previous conviction for manslaughter or culpable homicide in the UK or EU court, he shall only have his right to bail restricted where he received a sentence of imprisonment or detention upon conviction.

Class A Drug Users - Designated areas only

In certain parts of the country, Paragraphs 6A to 6C of Part I of Schedule I of the Bail Act 1976 apply which set out the exception to bail for adult drug users where their offending is drug-related, and where they have been required to undergo drug testing but have failed to comply with that requirement.

Exceptions to the right to bail

The grounds for refusing bail are set out in Schedule 1 to the Bail Act 1976.

A person may be denied bail if there are substantial grounds for believing that any of the exceptions in Schedule 1 of the Bail Act 1976 are made out. Different exceptions will apply depending on the category of offence and the flow charts at Annexes One - Six set out the approach to be taken by the court in deciding whether to withhold bail to a person charged with a particular category of offence.

Annex One: Adult Defendant: Indictable Only or Either Way Imprisonable Offence

Annex Two: Adult Defendant: Summary Imprisonable Offence

Annex Three: Adult Defendant: Non-Imprisonable Offence

Annex Four: Youth Defendant: Indictable Only or Either Way Imprisonable Offence

Annex Five: Youth Defendant: Summary Imprisonable Offence

Annex Six: Youth Defendant: Non-Imprisonable Offence

Note:

  1. In 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.
  2. Certain exceptions to bail are subject to the "no real prospect" test where a remand should not be sought for an un-convicted defendant who has no real prospect of receiving a custodial sentence. In less serious cases prosecutors should give careful consideration to the surrounding circumstances of the offence, the defendant's antecedents and any relevant sentencing guidelines in deciding whether there is a "real prospect" of a custodial sentence. Where this is not clear cut, it may be more appropriate to leave it to the court to decide and to make objections to bail in the usual way.
  3. It is vital that prosecutors note that this is not a consideration in cases involving domestic violence or any other risk of physical or mental injury to persons associated with the defendant.
  4. Post-conviction applications.

    Pursuant to section 4(2) of the Bail Act 1976, 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 the requirements of a community order or breach of certain youth community orders (s. 4(3)); or a court adjourns a case for enquiries or a report (such as a pre-sentence report) to be made in order to assist the court in dealing with the offence (s. 4(4)), the right to bail remains. Accordingly, in these circumstances, prosecutors 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.

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Opposing Bail: Information for prosecutors

Information that prosecutors may need from the police in order to decide whether the exceptions to bail are made out may 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 with the course of justice and any apparent motive for doing so (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 any relevant breach proceedings in respect of other sentences as the presence of one or more of the features may demonstrate an unwillingness or inability to comply with other orders of the Court such as bail conditions;
  • Any previous breaches of bail conditions in earlier or concurrent proceedings or a history of absconding and failing to surrender to custody;
  • 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. It should be noted that the risk of failing to surrender owing to the severity of the likely sentence, if convicted was a matter to be assessed in the light of other relevant factors. The likely sentence could not of itself provide grounds for a remand in custody (R (Thompson) v Central Criminal Court [2006] A.C. 9);
  • 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.

Victims and Witnesses

When dealing with bail hearings in court, prosecutors should ensure that the victim's views are considered, in deciding whether to seek a remand in custody.

Prosecutors are also reminded to ensure that victims are informed of bail decisions especially in cases involving 'vulnerable' and 'intimidated' victims and witnesses.

See further:

Opposing Bail: Procedure

The procedures governing applications and appeals in relation to bail are set out in Part 14 of the Criminal Procedure Rules.

Under Schedule One, Part IIA of the Bail Act 1976, a person is entitled to be granted bail at the first hearing at which he appears charged with an offence. If a remand in custody is sought, he may apply for bail using any argument of fact or law that he chooses.

If bail is refused, then paragraph 1 of Part IIA applies and the court is under a duty to consider bail at each subsequent hearing at which the defendant appears (Remands in absence under the Magistrates Court Act 1980 are not counted). At the first hearing after which bail is refused, any argument as to fact and law may be advanced and the court must consider it. Thereafter, paragraph 3 of Part IIA states that court need not hear arguments as to fact or law that it has heard previously, unless there has been a change or circumstances that might have affected the earlier decision see R v Dover & East Kent JJ., ex p. Dean [1992] Crim. L. R.33.

In exceptional cases where there is a material change in circumstances, the prosecutor can ask the court to withdraw bail that has previously been granted see s. 5B of the Bail Act 1976 and R (Burns) v Woolwich CC and CPS [2010] EWHC 3273.

Murder Cases - s. 115(1) Coroners and Justice Act 2009

Where a murder case is to be sent to the Crown Court, the magistrates have no jurisdiction to consider bail. The papers will be sent to the Crown Court and will be placed before a Crown Court judge authorised to hear murder trials or preliminary hearings. That judge will 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 CPS must be ready to deal with the section 115 hearing in the Crown Court irrespective of whether there is to be a bail application as the prosecutor will need to assist the judge with information to establish a legitimate reason for withholding bail.

In R (on the application of A) v Lewisham Youth Court [2011] EWHC 1193 it was confirmed that the power of the youth court to determine the appropriate form of custody was not displaced by s. 115 of the Coroners and Justice Act 2009. Youths charged with the serious offences listed in s. 115 should be dealt with in accordance with the procedure as set out at Annex Four: Youth Defendant: Indictable Only or Either Way Imprisonable Offence, Annex Five and Annex Six and in the section on Youths below.

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Conditions of Bail

General

Bail conditions should only be imposed in order to address any of the risks that would be inherent in granting unconditional bail. In proposing (or considering) conditions of bail, prosecutors must ensure that that they are necessary, reasonable, proportionate and capable of being enforced. Consideration should also be given to the extent to which they meet the objections to bail. Conditions that are unsuitable may give rise to a continuing risk of further offending, of absconding, or of harm to the victim(s) or public and prosecutors should be prepared to challenge their imposition or seek further evidence from the police before acceding to them, should they have any concerns.

Types of Condition

  • Reporting to a police station: This must be necessary to avert the risk it is designed to meet. For example, care should be taken to ensure that the interval between reporting times is not so long as to be insufficient to prevent a defendant from absconding.
  • Doorstep condition: It was held in R (CPS) v Chorley Justices [2002] EWHC 2162 (Admin) that a doorstep condition was 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.
  • Murder cases: Under s.115 of the Coroners and Justice Act 2009, a Crown Court must impose conditions in accordance with s.3(6A) of the Bail Act 1976 providing for the medical examination of the defendant. The Court need not impose the conditions if it is content that satisfactory reports have already been obtained.
  • Not to drive: The court must be satisfied that such a condition is necessary and, in doing so, ought to consider whether its imposition might have unexpected and unjust results: R v Kwame 60 Cr. App. R. 65
  • Sureties can be expressed as being continuous throughout the court proceedings and if they are taken on these terms, there is no requirement for the surety to attend each hearing. Prosecutors should be prepared to assist the court to explore the status and means of the potential surety, in the interests of justice and the surety. The prosecutor should be prepared to ask for time to make enquiries as to the sufficiency of the surety.
  • Securities should be lodged with the court or, in exceptional circumstances, with the police, and not with the CPS.
  • Electronic tagging: Where the court is satisfied that there is local provision for electronic tagging, and but for the tagging of the offender, he would not be granted bail, it may order that this condition be imposed (s. 3AB of the Bail Act 1976).

Credit for period of remand on bail with an electronic tag

Section 240A of the Criminal Justice Act 2003 provides that a court must direct that the period for which a defendant was subject to a curfew and an electronic monitoring condition, to count as time served by the offender as part of the sentence.

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 for:

  • sentences 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).

The court may decline to make a credit direction if 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 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.

Youths

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).

10 & 11 year olds

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).

12 - 17 year olds

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 17 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 of the Bail Act 1976).

Variation/Appeal

Where a court has granted bail, the prosecutor or the Defence 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 - s. 3(8) of the Bail Act 1976.

Under s. 16 of the Criminal Justice Act 2003, a person who has been unsuccessful in securing the variation or lifting of a bail condition may appeal that decision to the Crown Court.

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Reconsideration of Bail

The prosecutor may apply under s. 5B of the Bail Act 1976 to have bail reconsidered by the magistrates' court. This only applies to bail granted by the magistrates' court or the police, and only in relation to offences triable on indictment or either way. The prosecutor may apply to vary the conditions of bail, impose conditions on bail which had been granted unconditionally, or revoke bail.

The prosecutor may only apply on the basis of information which was not available to the court or the police when the original decision was taken. It is unclear whether information which the custody officer should have known or could reasonably be expected to have known will be treated by the court as not having been available. In the absence of case law, the prosecutor should treat such information as not having been available to the police.

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. The prosecutor 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, the prosecutor should provide details to the Police and request the Police view. Where the CPS has not yet received a file from the Police, the prosecutor should request a file. The Manual of Guidance gives details of the forms and procedures to be used.

The prosecutor 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 the prosecutor decides to proceed with a Section 5B application, the application must be made in accordance with Rule 93B of the Magistrates' Courts Rules 1981/552.

The prosecutor must make the application to the magistrates' court which granted bail or in the case of bail granted by the police, 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.

The CPS 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.

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Breach of Conditions of Bail

Breach of conditions of bail is not a Bail Act offence, nor is it a contempt of court unless there is some additional feature (R v Ashley [2004] 1 Cr. App. R. 23).

Section 7(3) of the Bail Act 1976 confers power upon a police officer to arrest a person if he 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.

Under s. 7(4) of the Bail Act 1976, a person so arrested must be brought as soon as practicable, and in any event within 24 hours of his arrest, before the magistrates court for the area in which he was arrested. The arrested person must be dealt with within that 24 hour period; bringing him before the court is insufficient - R v Culley [2007] EWHC 109 (Admin). Although a contrary view was expressed by the Divisional Court in the case of McElkerney v Highbury Corner Magistrates' Court [2009] EWHC 2621 (Admin), it is submitted that prosecutors should take care to ensure that the court is aware of the 24 hour limit and try and have the case disposed of within that time, or risk the defendant's release.

Under s. 7(5) of the Bail Act 1976, the magistrates' court before which the defendant is brought may remand him in custody or grant bail subject to the same or to different conditions if it is 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 s. 7(5) of the Bail Act 1976 was considered in R v Liverpool City Justices ex p DPP (1993) QB 233, which established five propositions:

  • That the arresting officer 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".
  • Where the defendant disputes the ground on which he was arrested, there is no necessity for the giving of evidence on oath or for providing an opportunity to the person arrested, or his legal representatives, to cross-examine witnesses or give evidence. However, there should be some way in which the defendant can respond to the alleged breach.
  • The magistrates' court has 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 s. 7(5) and if 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 court feels unable to form one of the opinions set out in s. 7(5) they must order the person concerned to be released on bail on the same terms as were originally imposed.
  • Proceedings under s. 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 s. 4 of the Bail Act 1976 will be subject not only to the exceptions of the right to bail in part 1, paragraph 2 of schedule 1 to the Bail Act 1976, but also to the exception in paragraph 6 of the Schedule.

It should also be noted that:

  • The procedures adopted above do not amount to breaches under Article 5 and 6 of the European Convention on Human Rights - R v Havering Magistrates ex parte DPP and R v Wirral Borough Magistrates ex parte Mark McKeown (2001) 2 Cr App R 2 considered these propositions and whether or not there were any and has held that R v Liverpool City Justices ex parte DPP (1993) QB 233 remains good law.
  • The issue for the court is whether there has been a breach and, if so, whether the defendant ought to be re-admitted to bail. The words "reasonable excuse" should not be imported into s. 7(5), and the breach of conditions was just one factor for the court to take into account when deciding whether to grant bail - R (Vickers) v West London Magistrates' Court [2003] EWHC 1809 (Admin). In practice, Prosecutors should not ask courts to deny a defendant bail simply because he or she was arrested in pursuance of s. 7 and courts should not withhold bail simply on that ground alone.
  • Where the defendant is arrested for a new offence and for breach of one or more bail conditions, the police must give consideration as to whether the breach of bail as well as the new offence should be placed before the court within 24 hours of the arrest. If this is possible, the suspect should be arrested for breach of bail as well, but must be placed before a magistrates' court within 24 hours, irrespective of the stage at which the investigation for the new offence has reached.
  • Where the nature of the investigation of the new offence is such that it is not practicable for the defendant to be placed before the court within 24 hours of an arrest for breach of bail, the police should delay the arrest under s. 7 of the Bail Act 1976 and only make the arrest when the enquiries for the new offence have been completed.

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Remands into Custody

Length of Remand into Custody

It should be remembered that these provisions should always be viewed as being subject to Custody Time Limits.

In the magistrates' court, a defendant can only remand a person in custody for a maximum of eight days, except where it has previously remanded him in custody and it has a set a date for the next stage of those proceedings. In those circumstances, having heard representations from the defendant's representatives, he can be remanded in custody for a period ending in that date or for a period of 28 days, whichever is the less - s. 128A of the Magistrates Courts Act 1980.

There is no maximum period of remand into custody in the Crown Court, where the judge is able to adjourn cases to the next stage in the proceedings.

Appearance by Live Link

Preliminary hearings, including those considering bail, may be held via live video link and where live link is used, the defendant is deemed to be present - s. 57A(2) of the Crime and Disorder Act 1998 (CDA).

There is no requirement that the defendant be in custody in relation to the offences to which the preliminary hearing relates. As such, prosecutors should consider the savings in time and cost that might result from using the live link where a prisoner serving a sentence in relation to another offence needs to be produced in court. In these circumstances, it is important to liaise with any Defence solicitors, where known.

The court may require an initial hearing to determine whether to make an order for the proceedings to be heard via live link, at which the defendant may be required to attend via live link, and in relation to which he (or those representing him) should be able to make representations - s. 57B(4)(5) CDA.

Warrants of further detention - pre charge: s. 43 PACE

An arrested person must be charged or released within 24 hours of his arrest or arrival at the police station (s. 41 PACE). This can be extended to 36 hours on authorisation of a police superintendent (s. 42 PACE). Thereafter, a police officer may apply on oath (supported by an information) to the magistrates' court for that period of detention to be extended where the court is satisfied (s. 43(4) PACE) that:

  • His detention without charge is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest or to obtain such evidence by questioning him;
  • The offence is an indictable one, and;
  • The investigation is being conducted diligently and expeditiously.

The application must be made before the 36 hour period has expired and the police may apply for the warrant of further detention to be extended up to a period of no more than 96 hours from the time of arrest or arrival at the police station (s. 44 PACE). For the detailed requirements as to the timing of applications, prosecutors should have regard to the provisions of ss. 43 and 44 PACE.

Prosecutors may find that, since it is usually the investigating police officer who makes the application on oath and that these applications are often made outside of normal court sitting hours, the officer will make the application to the court. However, if the court is sitting and, especially if the suspect is represented, the prosecutor may be required to assist the court by questioning the officer to establish that the grounds (see above) are made out.

If so, the prosecutor must ensure that the information in support of the application accords with the requirements of s. 43(14) PACE in that it contains:

  • The nature of the offence for which the suspect was arrested;
  • The general nature of the evidence;
  • What enquiries have been made and what further enquiries are proposed;
  • The reasons for believing that the suspect's continued detention is necessary for the purpose of such further enquiries.

Detention in a police station - post charge: s. 128(7)(8) Magistrates Court Act 1980 (MCA)

Prosecutors may also hear this provision referred to as a "lay down" and it is commonly used where a defendant has been charged for one or more offences and has been remanded in custody by the court for that matter, but the police wish to detain him in police custody for a short period to question him in relation to other offences.

Section 128 (7) MCA states that a magistrates' court having power to remand a defendant in custody may, if the remand is for no more than three days, commit him to be detained at a police station. He may only be detained at a police station if there is a need for him to be so detained for the purposes of enquiries into other offences and he shall be brought back to court as soon as that need ceases (s.128(8)(a)(b) MCA). His detention will be kept under continuous review, in accordance with PACE, whilst in police detention.

In the case of a person aged less than 18 years, the maximum period of the "lay down" is 24 hours - s. 91(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Prosecutors need to approach this application by firstly satisfying themselves that a remand in custody on the offence charged is justified, having regard to whether one or more of the exceptions to bail are made out. Only at this point, will they have to address the necessity for detaining him in the police station for further enquiries to be made.

If so satisfied, the application for a remand in custody will be made by way of a two stage application - for the remand into custody, and, if granted to police custody. Many defendants will be keen to go straight to prison and their advocates may argue that it is open to the police to bail the defendant to be produced at the police station, once the further enquiries are complete.

As such, it is vital that prosecutors are provided with sufficient information to justify the necessity for this type of detention - in addition to the remand file.

Detention in police custody for drug offenders: s. 152 Criminal Justice Act 1988

Where a defendant is brought before a magistrates' court charged with possession of a controlled drug or a drug trafficking offence, the Magistrates have the power to remand the defendant into the custody of a police officer or customs officer for a period not exceeding 192 hours, if the court considers it appropriate to do so.

In practice, this application will only be made in circumstances where the police are in a position to charge the offender and it is anticipated the maximum period of 96 hours under PACE will not be sufficient for the defendant to pass swallowed or concealed drugs from his body.

The prosecutor will first consider and apply for a remand in custody and, thereafter ask the court to remand initially for up to 192 hours into police custody. The police will be expected to provide evidence to support their assertion that the defendant has concealed drugs in his body and this will usually be in the form of an X-ray or other medical opinion, or observations of his conduct both before and after arrest.

Technical Bail

Prosecutors are instructed not to consent to technical bail at magistrates' court or Crown Court hearings.

Technical bail is where bail is granted to a defendant in circumstances where there are substantial grounds for believing that a remand into custody is justified but the defendant 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 granted on a technical basis, thereby avoiding the need to bring the defendant back to court unnecessarily for interim remand hearings. It also means that only one set of custody time limits needs to be monitored.

The risks inherent in agreeing to technical bail are:

  • 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 is likely to re-offend, abscond or present a risk to witnesses is 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 should be prepared to object to technical bail where satisfied that one or more grounds for withholding bail has been made out.

In objecting to bail, prosecutors should point out to the court 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 he is satisfied that there are no grounds for opposing bail, a prosecutor can still invite the court to impose conditions to take effect, should the defendant be released from custody.

The prosecutor's reasons for adopting this course of action should be recorded fully on the file.

Given the importance of this advice to maintaining public safety, the Justices' Clerks' Society and the office of the Senior Presiding Judge has been made aware of this advice.

Youth Remands

The question of a remand will only arise where an adjournment is sought and therefore the first point to consider is whether or not the adjournment is necessary. Prosecutors should be aware of the necessity of dealing with youth offenders in an expeditious manner.

The Bail Act 1976 applies to youth offenders and there is a presumption that the defendant has a right to bail.

The court must also have regard to the welfare of the youth (s. 44 of the 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 [2010] 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 (s. 37 CDA), 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).

In dealing with a person aged under 18 years, prosecutors are reminded that they should first satisfy themselves that the exceptions to the right to bail are made out (see Annex Four, Annex Five and Annex Six) and that conditions of bail will not allay their fears.

If so satisfied, the prosecutor should seek a remand into local authority accommodation (s. 91(3) of the Legal Aid and Punishment of Offenders Act 2012 (LASPO)). A remand into youth detention accommodation should only be sought where one of the sets of conditions set out in ss. 98 and 99 LASPO are met (s. 91(4)(a) LASPO).

Remands to Local Authority Accommodation

If bail is refused to a child the court must remand him or her to local authority accommodation, (s. 91 LASPO).

A remand to local authority accommodation is a remand in custody and custody time limits will apply (s. 23(11)(b) Prosecution of Offences Act 1985).

The remand is for a maximum of eight days as the remand in absence procedure not applying to youth offenders. If the remand is after conviction, then the maximum period is three weeks.

The Court shall designate the local authority that is to receive the youth offender (s. 92(2) LASPO).

Local Authority Remand with Conditions

The Court may impose any condition on the local authority remand that could be imposed under s. 3(6) of the Bail Act 1976 (s. 93(1) LASPO).

An electronic monitoring requirement may only be imposed if the criteria in s. 94 (2) to (6) LASPO are satisfied, namely:

  • the child is at least 12 years old;
  • one or more of the offences for which the child is remanded is imprisonable;
  • one or more of the offences for which the child is
    • remanded is a violent or sexual offence (as defined in Parts 1 and 2 of Schedule 15 Criminal Justice Act 2003) or
    • punishable in the case of an adult with imprisonment for a term of 14 years or more or taken together with any other imprisonable offences of which the child has been convicted in any proceedings,
    • amounts (or would, if the child is convicted of the offence(s) for which he or she is remanded) to a recent history of committing imprisonable offences while on bail or subject to a custodial remand;
  • electronic monitoring is available and the youth offending team have informed the court that electronic monitoring is suitable for the child.

The court may also impose requirements on the authority itself for securing compliance with any conditions imposed on the child or stipulating that the child shall not be placed with a named person (s. 93(3) LASPO).

The authority itself may ask the Court to impose conditions on a remand to local authority accommodation (s. 93(5) LASPO) and both the local authority and the child can apply to the court to vary or revoke any conditions previously imposed (s. 93(6) LASPO).

The court must consult the designated local authority before imposing conditions on the child or the local authority (s. 93(4) LASPO).

"Consultation" with the local authority is defined as such consultation (if any) as is reasonably practicable in all the circumstances of the case (s. 93(9) LASPO).

Prosecutors should know something of the local authority's arrangements for accommodation of youth offenders on remand. In all applications, 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.

Remands to Youth Detention Accommodation

Youths aged 10 and 11 can only be remanded to local authority accommodation.

The Court may remand a youth aged between 12 and 17 to youth detention accommodation, rather than local authority accommodation if the youth satisfies either the first or second set of conditions set out in ss. 98 and 99 LASPO 2012. These provisions are set out in Annex Seven: Youth Defendant Remand Provisions.

Prosecutors are advised to consult the Youth Offending Team to explain the objections to bail and the reasons for seeking a remand to youth detention accommodation and to ascertain whether they can offer a suitable alternative such as ISSP or bail support. You should only make an application for a remand to youth detention accommodation 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. Prosecutors should not use the mere existence of an offence or history condition to make an application for a remand to youth detention accommodation.

The court no longer has a power to remand a 15 or 16 year old boy to secure accommodation rather than a young offenders' institution. All children remanded to youth detention accommodation will be placed in a secure children's home, secure training centre or young offenders' institution.

Prosecutors should advise the defence solicitor, the Court and the youth offender team and of any information on the CPS file that indicates that a youth remanded to youth detention accommodation has any physical or emotional maturity issues or a propensity to self- harm to enable the child to be placed appropriately.

Secure Accommodation Orders

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 s. 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.

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. If the authority intends to make this application, 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 seven 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. 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.

Local Remands

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 child who is aged 12 to 17 inclusive, 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
  • any child that, for the reasons specified on the certificate, it is impracticable to make the transfer (s 38(6) PACE).

Although the new 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 children under 12 in youth detention accommodation would not be available to the Court, other than at the instigation of the local authority, itself under s. 25 of the Children Act 1989 it would be improper to try and use s. 38(6) PACE to achieve it.

See also the legal guidance on Youth Offenders.

Mentally Disordered Offenders

A defendant may have been detained in hospital under the Mental Health Act 1983 as a civil patient prior to charge. The court has no power to grant bail on condition that the defendant resides at the hospital and must remand the defendant in custody. However, the Secretary of State for Justice is able to consider a transfer under s. 48 Mental Health Act 1983 and facilitate a remand straight to hospital from the magistrates' court where:

  • He is satisfied by reports from two registered medical practitioners that the defendant is suffering from a mental disorder of a nature and degree that makes hospital treatment appropriate and urgent and that such treatment is available for the defendant, and;
  • That such treatment is expedient in the public interest and in all of the circumstances of the case.

Where the statutory criteria are satisfied, early liaison with the appropriate caseworker at the Mental Health Casework Section (MHCS) of the National Offender Management Service (NOMS) is essential. Cases are allocated according to the surname of the patient so please click on this link to find the correct caseworker. Prosecutors should contact the caseworker in advance of the first appearance to agree the information needed which will include:

  • Details of the alleged offence, including a case summary and list of antecedents;
  • Reports from at least two registered medical practitioners;
  • Details of the hospital where the defendant is being treated so that the MHCS can send the hospital Form H1004 to complete and ensure that they understand the process.

The MHCS will decide whether the hospital offers a sufficient level of security given the nature of the charges and antecedent history and any risk assessment. The fact that the defendant is already being treated at that hospital will be taken into account.

The transfer will be affected by a warrant directing the defendant's transfer to hospital. The section 48 warrant cannot be issued until the court has remanded the defendant in custody. Therefore the court remand warrant must be faxed or emailed to MHCS as soon as it is issued, and MHCS will send back the section 48 warrant. Warrants cannot be issued at the weekends or on Bank Holidays.

Section 52 of the Mental Health Act 1983 provides that a defendant remanded in hospital under section 48 can be remanded in his absence without the need for him to appear back before the court, provided that he shall not be remanded in his absence, unless he has appeared before the court within the previous six months.

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Appeals in relation to Grant of Bail

By the Prosecutor

From the Magistrates Court

Where a Prosecutor has applied for a defendant to be remanded in custody and the offence in relation to which the remand was sought was an imprisonable one, the prosecutor has a right of appeal to the Crown Court, under s. 1 of the Bail Amendment Act 1993 (BAA).

In deciding whether to seek a remand in such a case, the prosecutor should also consider whether an appeal would be appropriate in the event that the Court decides to grant bail. The decision and reasons for it must be clearly endorsed on the file.

Factors to Consider

In considering whether an appeal is appropriate, the key factor to consider is the level of risk posed to a victim, group of victims or the public at large.

The nature and seriousness 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 might be demonstrated in an offence of 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 may be shown to be greater where there is:

  • 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 a reason to appeal in circumstances where the defendant has no right to remain in the jurisdiction 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 accompanied by 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.

Where a prosecutor has decided to exercise a right of appeal, authorisation should be sought from a Level E manager.

Procedure

  1. Oral notice must be given to the court at the conclusion of the bail hearing and before the defendant is released - s. 1(4) BAA. The giving of an oral notice after a short delay of five minutes after the Magistrates had withdrawn and before the defendant was released was held to satisfy s. 1(4) - R v Isleworth CC ex p. Clarke [1998] 1 Cr. App. R. 257. The defendant is remanded in custody and should remain in the cells, pending the giving of the notice.
  2. A written notice must be served on the court and the defendant in person within two hours of the conclusion of the bail hearing - s. 1(5) BAA. If the notice is not served, the appeal is deemed disposed of and the defendant is released. A copy of the written notice is available on CMS. If necessary, the defendant should be produced in court within the two hour time limit in order to effect personal service of the written notice.
  3. The appeal must be heard within 48 hours of the end of the day on which the bail application was heard, excluding weekends and public holidays.
  4. Under CPR 14.9 (9), a prosecutor may abandon the appeal at any time before the hearing begins by serving notice on the Magistrates Court, the Crown Court and the Defence.
  5. The appeal hearing is a complete re-hearing of the application at the Magistrates Court with the judge at liberty to remand the defendant in custody, or grant bail on any conditions he or she deems appropriate.
  6. 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.

Youths

The BAA 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 ss. 12 and 12A of the Theft Act 1968 and in respect of whom the prosecutor has made representations that he or she should be remanded to local authority accommodation, or youth detention accommodation under the provisions of ss. 98 or 99 LASPO (see above).

In addition to the authorisation referred to 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.

From the Crown Court

Where a Prosecutor has applied for a defendant to be remanded in custody and the offence in relation to which the remand was sought was an imprisonable one, the prosecutor has a right of appeal to the High Court, under s. 1(1B) BAA. Authority to appeal to the High Court has to come at the level of Deputy Chief Crown Prosecutor.

The right of appeal to the High Court under this section does not enable a prosecutor to appeal a decision by the Crown Court to uphold the decision of Magistrates to grant bail - s. 1(1C) BAA.

The provisions on factors to consider, authorisation and procedure relating to an appeal from the Crown Court match those on appeal from the magistrates' court, save that prosecutors should note that:

  1. RSC Order 79, Rule 9(15) states that proceedings on appeal to the High Court can be commenced by lodging the written notice with that court; but,
  2. For precise information as to what documents to lodge and where, prosecutors should have regard to Practice Direction 4, which supplements that rule.

Habeus Corpus/Judicial Review

The High Court no longer has jurisdiction to entertain an application in relation to bail.

The High Court jurisdiction in respect of habeas corpus is unaffected. In 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, but authority indicates that this should be used sparingly - see R (ex parte R) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin).

By the Defence

Under s. 81 of the Senior Courts Act 1981, a defendant may appeal a decision of a Magistrates Court to withhold bail, but only where he or she has obtained a certificate from the Magistrates (under s. 5(6A) of the Bail Act 1976) that they have heard full argument from the defendant before refusing his application.

Rule 14.8 of the Criminal Procedure Rules sets out what the Defence must include in its Notice of Application and how the Crown must respond. The CPS should note that the importance of seeking the views of the police and any identified victims as to any proposed conditions and should ensure that these applications are brought to the attention of the police as soon as possible. Where necessary, prosecutors should be proactive in seeking more time for a response to be received - see Crim. PR 14.8 (6) and (7).

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Failure to Surrender

It is an offence for a suspect released on bail in criminal proceedings, to fail without reasonable cause to surrender to custody - s. 6(1) of the Bail Act 1976.

It is an offence for a suspect released on bail in criminal proceedings, who having reasonable cause for failing to surrender at the appointed place and time, fails to surrender at that place and time as soon as is reasonably practicable thereafter - s. 6(2) of the Bail Act 1976.

It is punishable as a summary only offence (maximum penalty 3 months and/or a 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.

Commencing a prosecution

Where bail is granted by the police and the defendant fails to surrender, the police may charge him as long as the charge is laid within six months of him failing to surrender, or three months of him surrendering to custody, being arrested or being brought before the court for the offence for which he is bailed, whichever is sooner - ss. 6(11) - (14) of the Bail Act 1976.

Where a defendant is bailed by the police and fails to surrender at the first hearing, the prosecutor should make an oral application for an information to be laid in relation to both the offence under s. 6(1) and that under s. 6(2), as it cannot be anticipated at that stage when the defendant will surrender and whether he will advance a reasonable cause. Where the defendant is brought before the court, having not been charged by the police and with no information having been laid previously, the prosecutor may ask for an information to be laid at this stage, subject to the time limits as set out above.

Where a defendant has been bailed by the court and fails to surrender, the court may try him for that offence at any point after he has been brought before the court for that offence, irrespective of the length of time since he failed to surrender - s. 6(10) of the Bail Act 1976.

When a defendant fails to appear at Court, the prosecutors should generally apply to the Court for a warrant without bail. In exceptional circumstances, they may use their discretion as to whether a warrant backed for bail may be appropriate.

Evidential Considerations

Prosecutors need to consider whether:

The defendant was bailed in criminal proceedings

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 was granted, giving details of the time and date the defendant was due to surrender, will be sufficient.

There was a failure to surrender

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.

Magistrates 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."

Accordingly, in the magistrates' court, what constitutes surrender may vary according to the arrangements which are made for accepting surrender at any particular court. In this instance, by surrendering to the enquiry desk, the defendant could not be said to have failed to surrender.

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) [2011] 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 did not agree that reporting to the usher amounted to surrendering.

Mere arrival at the Crown Court building does not constitute a surrender, neither did 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."

Reasonable Cause (excuse)

Under s. 6(3) of the Bail Act 1976, it is for the defendant to prove that he had a reasonable cause for failing to surrender. Error or forgetfulness is unlikely ever to amount to a reasonable excuse, but may be relevant mitigation for the court to consider (Laidlaw v Atkinson The Times (02 August 1986)).

Issuing of Medical Certificates

This guidance clarifies the roles and responsibilities of medical practitioners when issuing medical certificates in criminal proceedings.

Doctors will be aware that medical notes/certificates are normally submitted by defendants in criminal proceedings as justification for not answering bail; they may also be submitted by witnesses who are due to give evidence and jurors.

If a medical certificate is accepted by the court, this will result in cases (including contested hearings and trials) having to be adjourned rather than the court issuing a warrant for the defendant's arrest without bail. Medical certificates will also provide the defendant with sufficient evidence to defend a charge of failure to surrender to bail.

However, a court is not absolutely bound by a medical certificate. The medical practitioner providing the certificate may be required by the court to give evidence. Alternatively the court may exercise its discretion to disregard a certificate, which it finds unsatisfactory - R v Ealing Magistrates Court Ex p. Burgess (2001) 165 J.P. 82.

Circumstances where a court may find a medical certificate to be unsatisfactory include:

  1. Where the certificate indicates that the defendant is unfit to work (rather than to attend court);
  2. Where the nature of the defendant's ailment (e.g. a broken arm) does not appear to be capable of preventing his attendance at court;
  3. Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic timescale.

It therefore follows that as a minimum standard a medical certificate should set out:

  1. The date on which the medical practitioner examined the defendant;
  2. The exact nature of the defendant's ailment;
  3. If it is not self-evident, why the ailment prevents the defendant from attending court;
  4. An indication as to when the defendant is likely to be able to attend court, or a date when the current certificate expires.

Medical practitioners should be aware that when issuing a certificate to a defendant in criminal proceedings they make themselves liable to being summonsed to court to give evidence about the content of the certificate, and may be asked to justify their statements.

This guidance on the issuing of medical certificates, which was originally agreed with the British Medical Association (BMA) after a period of consultation, is now Criminal Practice Directions CPD1 General Matter 5C Issue of Medical Certificates.

Public Interest Considerations

A prosecution will normally be in the public interest where a defendant 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 later than the appointed time, consideration ought to be given to the following questions 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
  • Has 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?

Procedure

Where the court is looking to proceedings for failure to surrender (separate to consideration as to whether bail should be revoked or amended), it should consider the content of Criminal Practice Direction (Custody and Bail) [2013] 1 W.L.R 3164, the main requirements of which are:

  • These offences should be dealt with as soon as practicable, and where possible, at the first hearing after arrest, as its outcome will be relevant to the consideration of bail.
  • Proceedings for failing to surrender ought not to be adjourned, even the proceedings for the offence that led to the grant of bail are adjourned. If an application to adjourn is made, the court will need to consider all of the circumstances including likely length of proceedings and the penalty that might be imposed for failing to surrender
  • even if the defendant fails to surrender to court bail, it is the prosecutor who conducts proceedings.
  • Bail should be reconsidered in the light of the failing to surrender.
  • A separate penalty should be considered for the failing to surrender.

The court should give reasons in open court if it decides not deal with the Bail Act offence at the earliest opportunity.

If proceedings are sent to the Crown Court, then, the defendant can be committed for sentence to the Crown Court, but only if convicted in the magistrates' court - s. 6(6) of the Bail Act 1976.

If the defendant is sentenced for the Bail Act offence at the same time as for the substantive offences, then any term of imprisonment for failure to surrender should run consecutively to any other term of custody.

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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 s. 15(3) of the 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.

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 enquiries@offsol.gsi.gov.uk.

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File Endorsements

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. This information should be recorded by the prosecutor on the electronic Hearing Record Sheet (HRS).

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 (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.

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Annex 1 - Adult Defendant - Indictable Only or Either Way Imprisonable Offence

The Magistrates' Court - Simple Bail Structure - Card 1 - Adult Defendant: Indictable Only or Either-Way Imprisonable Offence.

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Annex 2 - Adult Defendant - Summary Imprisonable Offence

The Magistrates' Court - Simple Bail Structure - Card 2 - Adult Defendant: Summary Imprisonable Offence.

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Annex 3 - Adult Defendant - Non-Imprisonable Offence

The Magistrates' Court - Simple Bail Structure - Card 3 - Adult Defendant: Non-Imprisonable Offence.

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Annex 4 - Youth Defendant - Indictable Only or Either Way Imprisonable Offence

The Magistrates' Court - Simple Bail Structure - Card 4 - Youth Defendant: Indictable Only or Either-Way Imprisonable Offence.

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Annex 5 - Youth Defendant - Summary Imprisonable Offence

The Magistrates' Court - Simple Bail Structure - Card 5 - Youth Defendant: Summary Imprisonable Offence.

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Annex 6 - Youth Defendant - Non-Imprisonable Offence

The Magistrates' Court - Simple Bail Structure - Card 6 - Youth Defendant: Non-Imprisonable Offence.

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Annex 7 - Youth Defendant - Remand Provisions

The Magistrates' Court - Simple Bail Structure - Card 7 - Youth Defendant: Remand Provisions.

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