Difficult Decisions: The Bail Balancing Act

Bail decisions are among the most difficult taken by the Magistrates' Court.

Bail, very briefly, is where either the police or court release a person on the understanding they will return at some other agreed time. If they do not return then they commit the offence of failing to surrender to custody. You can read a lot more about Magistrates' Court bail in my previous article on the subject.

If you grant bail, either with conditions or without, the defendant is walking free from the court that day, although they may have some restrictions placed on their liberty. If you refuse to grant bail then the defendant, who probably won't have been convicted by this stage (and may never be convicted), is facing the prospect of being remanded in custody.

Bail decisions are often a very difficult balancing act. On the one hand you have the rights of the defendant to go about their business unhindered; on the other you have the rights of the injured party and wider public to do the same.

Recently we had a very difficult bail decision to make. The male defendant, who appeared in custody, was accused of a section 47 assault on his former girlfriend. He denied such an assault took place. It was alleged that he had punched her to the face causing a split lip and broken front tooth. This had happened outside a shop in the town where she lived. It had taken the police a few days to catch up with him, so he was appearing a week or so after the alleged assault took place.

The Crown applied for the defendant to be remanded in custody to prevent interference with witnesses and the commission of further offences. It was also noted that the former girlfriend was an associated person as the pair were previously cohabiting. The prosecutor highlighted the extensive antecedence of the defendant and the fact he had committed several previous offences whilst on bail. The prosecutor also highlighted that the defendant was subject to a restraining order, preventing all contact with his former girlfriend, which was made a year earlier when he was convicted of kicking the wing mirror from her car. It was also noted that the former girlfriend had made several previous allegations of assault against the defendant.

The defence advocate rose to his feet and acknowledged that his client had extensive antecedence, which was mainly for the unrelated offence of shop theft. Significantly he had only one previous conviction for assault, which with committed several years earlier and did not involve his former girlfriend. In relation to the former girlfriend's allegations of assault, the defence advocate said that he had never been convicted for such an offence and the statements had always been retracted.

Given he only had one previous conviction for assault in addition to the criminal damage matter, there was no reason to believe he posed a significant risk to his former girlfriend or would go on to commit new violent offences now. He added that despite the existence of the restraining order, the former girlfriend had made several attempts to get in contact with the defendant and wanted to resume their relationship. She had actually approached the defendant on the day the alleged section 47 assault took place.

The defence advocate said that his client had just secured new accommodation, which would be at risk if he were to be remanded. This accommodation was in a different town to his former girlfriend and was suitable for an electronically monitored curfew. The defence advocate also suggested an electronically monitored exclusion zone of the town where the former girlfriend lived, as the defendant had no reason to visit it.

Having listened to both the prosecution and defence perspectives we were persuaded to grant the defendant bail with an electronically monitored curfew and exclusion zone. He was released with the message that he had come within a whisker of being remanded and if he was to breach any of his conditions that would undoubtedly be the outcome on the next occasion.

I hope we got it right.