How do the courts decide whether or not to grant bail?

What is bail?

If a defendant is granted bail it means they are allowed back into the public while they await trial or further police investigations, instead of being remanded in custody (ie, locked up).

A person can be released on bail at any point from the moment they have been arrested. This may be granted in the police station after interview or the court after the preliminary hearing. Discretion for granting bail lies with the authorities in charge.

Police powers to grant bail

If the police custody officer releases the defendant on bail, this is usually on condition that they return to the named police station at a certain date or turn up at court for a preliminary hearing.

The custody officer may refuse bail if:

  • the defendants name and address cannot be obtained or;
  • if there is any doubt that the details given are incorrect or false.

What happens if a defendant fails to return?

If a defendant released on bail fails to either return to the police station at a specified time, or turn up to court on the given date (depending on what conditions were set with the bail), the police have the power to order the arrest of that person for breach of their bail conditions.

Conditional bail

Under the Criminal Justice and Public Order Act 1994, the police have the power to impose conditions on granting bail. These include:

  • suspect has to surrender his passport;
  • report to the police station at regular intervals set by the custody officer;
  • have another person stand as surety for his surrender.

These conditions are imposed to ensure the defendant follows the stipulations of his/her bail, does not commit another offence while on bail and does not interfere with any witnesses during his/her release.

If police bail is refused

If the custody officer decides to refuse bail, the defendant must be taken in front of the magistrates’ court at the first possible opportunity.

If the magistrates’ court cannot deal with the whole case at first instance, it will set a date for a future hearing and decide whether or not to grant of bail until then.

The Bail Act 1976

When assessing whether to grant bail, courts must – under the Bail Act 1976 (BA 1976) – start with the presumption that an accused should be granted bail, unless there is a justified reason to refuse it.

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