Failing to Surrender to Custody

The decision to grant bail or remand a defendant in custody is one of the most difficult a bench will ever have to make.

We have previously discussed the rules pertaining to Magistrates' Court bail in an earlier article. The primary legislation relating to bail is the Bail Act 1976.

Bail decisions are all about balancing risk. Is the defendant's general right to go about their lawful business in the outside world, offset by the risk that they might commit further offences, interfere with witnesses, cause harm to either them self or another person, or fail to surrender to custody at the appointed place or time? If there is a risk, can conditions be imposed that would reduce it to an acceptable level?

It is not, in itself, an offence for a defendant to breach any bail conditions they are subject to, however, doing so leaves them liable to arrest. A person arrested for breaching their bail conditions must be presented before the court within 24 hours, where they could be remanded or made subject to more arduous conditions.

Under section 6(1) of the Act it is an offence for a defendant to fail to surrender to custody without reasonable cause.

Even if they have reasonable cause, an alternative offence is committed under section 6(2) if they fail to surrender at the appointed place as soon as reasonably practicable after the appointed time.

In accordance with section 6(3), it is for the defendant to prove any reasonable cause for failing to surrender that they are relying upon.

In accordance with section 6(4), failure of the defendant to receive a written copy of the bail decision is not a reasonable cause to fail to surrender.

An offence under section 6(1) or 6(2) is punishable either by summary conviction or as if it were a criminal contempt of court. The maximum penalty on summary conviction is 3 months' custody and/or an unlimited fine.

The Magistrates' Court has the option of sending the case to the Crown Court for sentencing if it considers its own sentencing powers are insufficient. The maximum penalty available to the Crown Court is 12 months' custody and/or an unlimited fine.

Section 127 of the Magistrates' Court Act 1980 does not apply to offences under sections 6(1) or 6(2) when a person is accused of failing to surrender to court bail. This means the usual 6 month time limit for laying an information does not apply.

Conversely, in the case of a person accused of an offence under section 6(1) or 6(2) for failing to surrender to police bail, an information must be laid:

• Either, within 6 months of the alleged failure to surrender;
• Or, within 3 months of the defendant surrendering to custody at the appointed place; or being arrested in relation to their failure to surrender to custody or the underlying offence; or being brought before the court in relation to their failure to surrender to custody or the underlying offence.

The relevant sentencing guideline gives the factors that need to be taken into account when sentencing a person for failing to surrender.