Magistrates' Court Bail

Whether to grant bail or remand a defendant in custody is one of the most difficult decisions the Magistrates' Court can make.

In this article we give a quick, whistle-stop tour of the Magistrates' Court bail process. This is different from pre-charge bail (police bail), which we shall write about on a future occasion. We shall try to cover the key points, but our article will not be as exhaustive as the official guidance on the Sentencing Council website and suchlike. Anyone with a deeper interest is advised to refer to that official guidance. We'd invite readers to comment if they notice any glaring errors or omissions in this article.

The primary legislation relating to bail is the Bail Act 1976.

What is bail?

Bail, for the benefit of anyone that doesn't already know, is the release of a defendant on the condition that they reappear before the court at some agreed time in the future.

There are two general types of bail imposed by the Magistrates' Court - unconditional bail and conditional bail. Defendants have a general right to be granted bail, save for the most exceptional of circumstances. 

More often than not it will be appropriate for the court to grant unconditional bail - e.g. the defendant is free to go about their daily business, without restriction, until they next appear in court. Unconditional bail is appropriate in cases where the defendant can be relied upon to return before the court and keep out of trouble in the meantime.

Sometimes it will be appropriate to grant conditional bail - e.g. the defendant is free to go about their daily business until they next appear in court, but some restrictions are placed on what they can and can't do. Conditional bail is appropriate when the court is reasonably sure that the defendant will return before the court, but they need to be closely monitored in the meantime. The court should only impose conditions if it is necessary to do so.

Whether subject to either type of bail, the defendant commits an offence if they fail to turn up at court at the time they are required to. This is known as failure to surrender to bail.

Bail is an arrangement between the court and the defendant. Whether or not to grant bail, and whether or not to impose any conditions, is entirely a matter for the court.

A defendant has a general right to bail, unless they were already subject to bail at the time the new offence is alleged to have occurred.

Reasons to refuse bail
If the defendant is charged with an imprisonable offence, bail can be refused if the Bench or District Judge is of the opinion:

• That the defendant would fail to surrender - e.g. they would not turn up at court on the next occasion as required to;
• That the defendant would commit further offences whilst on bail;
• That the defendant has been arrested for breaching previous bail conditions or failing to surrender;
• That the offence the defendant is charged with was committed whilst they were already subject to bail. This is only applicable in the case of indictable or either-way offences;
• That the defendant needs to be remanded for their own protection;
• That the defendant is already serving a custodial sentence.

If a defendant is not granted bail then they are remanded in custody. Remanding a defendant in custody is a very serious decision that requires careful consideration - the court is taking away their liberty, often before they have been convicted of any offence.

In relation to any of the exceptions listed above, the defendant should only be remanded in custody if there is a real prospect that they would be sentenced to a term of imprisonment on conviction.

If the defendant is charged with a non-imprisonable offence, bail can be refused if the Bench or District Judge is of the opinion:

• That the defendant needs to be remanded in custody for their own protection.

A defendant accused of murder or conspiracy to murder is not entitled to bail and must be remanded in custody. A defendant accused of manslaughter or a serious sexual offence can only be granted bail in exceptional circumstances.

Even when there is no real prospect of custody on conviction, a defendant can be refused bail and remanded in custody if the court has substantial grounds to believe that they will commit an offence that is likely to cause, or make an associated person fear physical or mental injury. An "associated person" is defined by subsection 62(3) of the Family Law Act 1996.

Conditions that can be attached to bail
If the court decides to impose conditional bail, then it can impose reasonable conditions on the defendant's activities and residency. In all honesty, the court could be as creative as it wanted in selecting those conditions, but it is important that they are clearly understood by all concerned.

The most common bail conditions are for the defendant:

• To reside at a particular address.
• To be present at a particular address between certain hours of the day. This is often referred to as a curfew and it can be electronically monitored in certain circumstances. The court will need to determine the suitability of an address for curfew;
• To keep away from a particular place (e.g. the street where the alleged victim lives; the business where the alleged victim works);
• To avoid contacting certain people (e.g. the alleged victim and/or prosecution witnesses). This includes contact by direct or indirect means;
• To report to a police station on a regular basis;
• To surrender their passport;
• To agree to pay money (a surety) or forfeit money (a security) if they fail to surrender.

Electronically monitored curfew
An electronically monitored curfew - e.g. one in which the defendant wears an electronic tag to confirm their presence at the curfew address during the hours of curfew - should only be applied as a condition of bail where the defendant is charged with an imprisonable offence. This condition should only be imposed as a direct alternative to a remand in custody. The days spent on an electronically monitored curfew are counted as days remanded in custody and are therefore taken into account if a custodial sentence is imposed.

Electronically monitored exclusion zone

An electronically monitored exclusion zone also requires the defendant to wear an electronic tag. Again, it should only be applied as a condition when the defendant is charged with an imprisonable offence. The same tag can be used for both electronically monitored curfew and exclusion purposes if required. The court determines the area that the defendant is excluded from. If the defendant strays into the excluded area the monitoring company will be alerted. This condition should only be imposed as a direct alternative to a remand in custody.

Technical bail
Occasionally a situation arises where a defendant is already in custody when they are brought before the court on new charges. Technical bail may be granted for those new offences, but the defendant would remain in custody.

Varying conditions of bail
The defendant can apply to the court for a variation of their bail conditions. It might be, for example, that they have been evicted from the property they are residing at and it therefore becomes unsuitable for curfew. In those circumstances they can ask the court to vary or remove the relevant bail conditions.

Breaching conditions of bail
Breaching bail conditions is not an offence in its own right, but any defendant doing so is liable to be arrested and brought back before the court. Section 7 of the Bail Act 1976 requires that any defendant arrested for breaching their bail conditions be brought before the court within 24 hours of their time of arrest. If the court is of the opinion that the conditions have indeed been breached, it could choose to remand the defendant in custody until their next hearing. Alternatively, the court could vary the existing conditions of bail and make them far more restrictive.

Powers exercisable by a single Justice
Practically every bail decision is taken in open court by a Bench or District Judge, but legislation (section 49 of the Crime and Disorder Act 1998) exists allowing a single Justice to deal with many bail applications and variations.

Failing to surrender
Failing to surrender to bail - e.g. the defendant failing to turn up at court as required - is an offence contrary to subsection 6(1) of the Bail Act 1976.

Occasionally a person subject to bail has reasonable cause for failing to surrender to bail at the appointed time and place - e.g. they were in police custody or hospital at the time. In this case, an offence is committed under subsection 6(2) of the Act if that person does not surrender to bail at the earliest opportunity.

In the Magistrates' Court the maximum sentence for either of these offences is 6 months imprisonment.

If a defendant has pleaded not guilty, is bailed until their trial hearing and then fails to attend, not only have they committed a Bail Act offence, but there is also a good chance the trial will proceed in their absence. The court could also issue a warrant for their arrest.

Conclusion

That concludes our brief introduction to Magistrates' Court bail. In summary, defendants have a right to bail save for in the most exceptional circumstances. If bail is granted, conditions should only be imposed by the court if necessary. It is not an offence for a defendant to breach their bail conditions, but they could be arrested and brought before the court for doing so. It is an offence, punishable by imprisonment, if a defendant fails to surrender to bail.